ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT (SOUTH AFRICA)
OCTOBER 2021
To download and / or print this newsletter please click on this link: Monthly SHE and Foodstuffs Legal Newsletter of what happened in October 2021
Dear Clients,
Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during October 2021.
NATIONAL LEGISLATION
1) Waste Act
- DRAFT Packaging Guideline: Recyclability by Design for Packaging and Paper in SA
This rather lengthy draft guideline was published for public comment this month (despite its title page reflecting May 2020). It covers the following packaging materials:
- Glass (including labels, metals, coatings)
- Metals (steel/tinplate, aluminium, aerosol cans)
- Paper (process, ink, adhesives, wet-strength additives, liquid board packaging (beverage cartons and paper cups), laminate and wax layers, paper grade definitions for recycling)
- Plastics (recycling requirements, PET, PE-HD, PVC, PE-LD, PP, polystyrene, bio-degradable and compostable plastics).
2) Marine Pollution (Prevention of Pollution from Ships) Act
In September 2019 extensive proposed amendments were proposed to the above Act and which were published for comment. The most relevant proposed changes are the addition of Annex IV and VI to the Schedule of the Act.
Annex IV deals with the prevention of pollution by sewage from ships, while Annex VI sets out regulations for the prevention of air pollution from ships. The Government Gazette with the proposed changes is 96 pages long and a summary of suggested changes is therefore clearly beyond the scope of this update notification.
A notice was now published advising the Minister of Transport’s intention to introduce the Bill to Parliament (no date was, however, provided).
3) Hazardous Substances Act
- Proposed Declaration of Lead in Paint or Coating Material as a Group II Hazardous Substance
A draft proposal to declare lead containing paint or coating material as Group II hazardous substance was published for public comment.
4) Civil Aviation Act
- 2011 Regulations – Draft Amendments
Extensive draft amendments to the 2011 Regulations were published for comment.
PROVINCIAL LEGISLATION
No relevant provincial legislation was published during this month.
MUNICIPAL LEGISLATION
5) Bela Bela Local Municipality
The following draft by-laws were published for comment:
- Solid Waste By-law
- By-law on Animals
- Noise Abatement and Prevention of Nuisance By-law.
6) eThekwini Metropolitan Municipality
The Stormwater Management By-law was published.
It prohibits, among others, the:
- interference with or damage to a stormwater system
- discharge of anything likely to pollute or contaminate stormwater
- discharge of water from a fountain, borehole, well, reservoir or swimming pool into the stormwater system except where required to lead away excess rainwater during an extreme storm
- discharge of stormwater into the sewage system.
The disposal of stormwater on any premises must comply with the requirements of Part R of the National Building Regulations.
An owner of premises must provide suitable means for the control and disposal of accumulated stormwater in accordance with Part R of the National Building Regulations and the Council’s policy. The owner is further required at own cost to maintain the effective functioning of the private stormwater system, in accordance with regulation A15 of the National Building Regulations, unless the Municipality has undertaken to accept responsibility for the duties either in the form of a maintenance agreement or in terms of a condition of servitude.
An owner must take reasonable measures to prevent the occurrence of a health nuisance as a result of any rainwater harvesting, rainwater storage or attenuation measures implemented.
Any person or owner must immediately report the occurrence of a pollution incident to the Municipality. A pollution incident is defined as an incident or occurrence which has a detrimental impact or potential detrimental impact on the quality of water in the stormwater system to such an extent that public health or the health of the natural ecosystems may be threatened.
A conviction in terms of the by-law may result in a fine not exceeding R100 000, or to imprisonment for a period not exceeding five years, or both. In the case of a continuing offence, an additional fine not exceeding R500, or imprisonment for a period not exceeding ten days, for each day on which such offence continues or both such fine and imprisonment, may be imposed.
7) Emalahleni Local Municipality
The new Water and Sanitation By-law was published. This replaces all other by-laws dealing with this topic.
While not really introducing any new requirements it does, however, oblige anybody using more than 3650 kl per year to perform an annual water audit.
8) City of Johannesburg Metropolitan Municipality
The City promulgated the following two new by-laws:
- Air Pollution Control By-laws
This repeals the 2011 Air Pollution Control By-laws.
Some parts of the by-law are confusing, like the following:
Section 5(1):
Any person who is wholly or partially responsible for causing air pollution or creating a risk of air pollution or nuisance occurring must take all reasonable measures:
- to prevent any air pollution or nuisance from occurring; or
- to mitigate, as far as reasonably possible, any air pollution or nuisance that may occur.
Section 5(6):
Any person who is wholly or partially responsible for causing air pollution or creating a risk of air pollution occurring must take all reasonable measures including the best practicable environmental option:
(a) to prevent any potential significant air pollution from occurring; and
(b) to mitigate and, as far as reasonably possible, remedy the environmental impacts and consequences of any air pollution that has occurred.
It is unclear why these two above provisions were inserted when the legal obligations could have been covered more elegantly in one subsection instead.
The Council may, if a person fails to comply or inadequately complies with a directive issued, take reasonable measures to remedy the contravention. Reasonable costs incurred in this regard may be recovered from any or all of the following persons:
(a) any person who is or was responsible for, or who directly or indirectly contributed to the air pollution or the potential air pollution;
(b) the owner of the land at the time when the air pollution or the potential for air pollution occurred;
(c) the person in control of the land or any person who has or had a right to use the land at the time when the activity in question is or was performed or undertaken;
(d) any person who negligently failed to prevent the activity.
The whole area within the jurisdiction of the municipality is declared an air quality management zone which gives the Council various powers to control air pollution.
Schedule 1 of the by-law sets out various activities which may only be conducted with a permit.
| 1. Precious and non-precious metal |
|
| Description | The production or process of precious and associated base metals through chemical treatment (excluding inorganic chemicals) |
| Application | Production output from 100 kg to 1 000 kg per annum |
| 2. Ceramic production |
|
| Description | The production of tiles, bricks, refractory bricks, stoneware or porcelain ware by firing, excluding clamp kilns |
| Application | All installations producing output from 10 to less than 100 metric tonnes per year |
| 3. Fuel combustion installation |
|
| Description | Fuel combustion installation used primarily for steam rising or electricity generation |
| Application | All installations from 1-less than 10 megawatts thermal input per facility or premises |
| 4. Organic chemical manufacturing |
|
| Description | The production or, use of in production of organic not specified elsewhere including acetylene, acetic, maleic or phtalic anhydride or their acids, carbon disulphides, pyridine, formaldehyde, acetaldehyde, acrolein and its derivatives, acrolonitrile, amine and synthetic rubber. The production of organometallic compounds, organic dyes and pigment, surface-active agents. The polymerisation or co-polymerisation of any unsaturated hydrocarbon, substitutes hydrocarbon (including vinyl chloride). The manufacture, recovery or purification of acrylic acid or any ester of acrylic acid. The use of toluene di-isocyanate or other dis-isocyte of comparobic volatility, or recovery of pyridine |
| Application | All installations producing or using more than 10 to less than 100 metric tonnes per annum |
| 5. Inorganic chemical manufacturing |
|
| Description | Production and or use in manufacturing of ammonia, fluorine, fluorine compounds, hydrogen cyanide and chlorine gas (excluding metallurgical process related activities) |
| Application | All installations producing or use of 10 to 100 metric tonnes per annum |
| 6. Dry cleaning |
|
| Description | |
| Application | Any facility consuming more than 6 800 L of perchloroethylene |
| 7. Spray painting |
|
| Description | |
| Application | Any facility consuming more than 2 500 L of materials containing volatile organic compounds per annum |
| 8. Processing of timber or materials derived from timber (The burning or drying of wood and the production of manufactured wood products) |
|
| Description | The burning or drying of wood by an external source of heat, and the manufacture of laminated and compressed wood product |
| Application | All installations producing less than 10 tons per month |
| 9. Brake pad de-bonding by the application of heat |
|
| Description | Debonding of a brake shoe by applying heat, shot blasting and coating |
| Application | All installations |
| 10. Processing of fabric off cuts |
|
| Description | Any facility processing fabric off cuts |
| Application | All installations |
| 11. Sandblasting |
|
| Description | The installation and operation of sandblasting and spray booth |
| Application | All installation |
| 12. Printing works |
|
| Description | Printing, coating and lamination process using gravure, flexography, rotary screen printing, heat set lithography, varnishing and printing system that incorporate element of these technologies |
| Application | Installations with organic solvent consumption threshold of less than 25 tonnes per year |
| 13. Production of ready mix cement |
|
| Description | The production of ready mix cement |
| Application | All installation |
| 14. Storage and handling of ore and coal |
|
| Description | Storage and handling of ore and coal not situated on the premises of a mine or works |
| Application | Location designed to hold less than 100 000 tons |
| 15. Animal matters | |
| Description | Processes for the rending cooking, dehydration, digestion, evaporation or protein concentration of an animal matter not intended for human consumption |
| Application | All production handling less than 1 ton of raw material per day |
| 16. Crushing stones / rock |
|
| Description | The production of building materials, eg. sands, gravel |
| Application | All installations |
Open burning is prohibited except for recreational or domestic purposes.
A coal merchant or distributor must keep a record of the amount of coal on site and/or on an industrial property. Merchants or distributors with 5 tons or more of coal are required to register with the Council in order to obtain the necessary permit. The record of the amount of coal on site and/or on an industrial property must be reported to the air quality officer on an annual basis.
No person may drive a vehicle powered by diesel fuel on a public road if it emits dark smoke.
The occupier or owner of any premises must take all reasonable steps to prevent the emission of any offensive odour caused by any activity on such premises.
A conviction in terms of the by-law may result in imprisonment for a period not exceeding 36 months. In the case of a continuing offence a further fine not exceeding R5 000 may be imposed, or in default of payment imprisonment not exceeding one day for every day during the continuance of such offence may follow.
- Waste Management By-laws
This repeals the 2013 Waste Management By-laws.
Waste generators must separate waste with the aim of minimising waste and its impacts on the environment and to store the recyclable waste separately from non-recyclable waste provided that industrial waste must be separated into liquids, components and materials that can be treated for recycling or re-use. Waste must be re-used, recycled and recovered where possible.
Integrated waste management plan
The Council may require waste generators to prepare an integrated waste management plan (IWMP). The IWMP must include at least:
(a) an assessment of the quantity and type of waste that is or will be generated;
(b) a description of the waste management services the generator will require;
(c) the full details of the site/s or area/s where waste will be generated, stored, treated or disposed of;
(d) a description of how the generator of the waste separates or intends to separate recyclable and non-recyclable material;
(e) the waste minimisation and pollution prevention practices and plans of such waste generator;
(f) the methods of disposal or treating such waste;
(g) a reporting plan on the implementation of the integrated waste management plan;
(h) details of the person responsible for the implementation of the integrated waste management plan; and
(i) any further information that the Council may in writing require.
The Council must consider the waste management plan and:
(a) approve it subject to any conditions;
(b) request that additional information be furnished within a specified time frame;
(c) require amendments to be made within a time frame so specified; or
(d) reject the plan and provide reasons therefor.
A venue owner or organiser of an event is required to contract with an accredited service provider for the provision of waste management services and must furthermore submit an event waste management plan at least 30 days prior to the proposed event.
Building waste
Where building work is involved a building waste management plan must be submitted which sets out the manner in which all building waste and other waste to be generated in the course of construction will be managed, treated, collected, transported and disposed of. Proof that an accredited service provider was appointed to handle building waste must also be furnished. No site development plan may be approved before the building waste management plan has been approved by the Council. A refundable deposit of an amount determined by the Council in terms of a formula that will be set from time to time, and which amount would be sufficient to cover the costs of cleaning-up or managing building waste if the building waste management plan is not complied with, must be paid. Building waste must be separated into recyclable and non-recyclable waste. Every waste generator, building contractor or waste removal contractor is obliged, when depositing waste at a waste disposal site, to obtain and retain for a period of 12 months a weigh bill from the authorised official at the waste disposal site confirming the nature and weight of building waste collected. When plans are submitted to the Council for its approval in terms of the National Building Regulations and Building Standards Act, 1977, the person submitting same must further hand in an IWMP setting out what provision is made for collection and disposal of the building and other waste, and stating what steps will be taken to store the waste on the property. It is unsure whether the building waste management plan and IWMP are separate documents, or whether both can (or should) form part of a combined plan. Prior to an occupancy certificate or any final approvals being granted, the owner of the property will be required to provide the building control officer or authorised official with proof of a weighbridge certificate that he or she has disposed of the full mass of the building rubble at a licensed waste disposal facility for that category of waste.
Hazardous and health care risk waste
Generators of hazardous or health care risk waste (HCRW), with the exception of households, must prepare an IWMP setting out what provision is made for managing, storing, treating, collecting, transporting and disposing of hazardous or HCRW generated from such activities. Proof that all waste management services will be provided by an accredited service provider must also be submitted. A copy of a valid public health permit, if the activity that will generate hazardous or HCRW is listed in Schedule 1 to the Council’s Public Health By-laws, must further be provided.
The IWMP must include:
(a) the information set out in section 11(a)-(i);
(b) an analysis of the composition of the waste concerned;
(c) certification of the analysis of the composition of the waste by an appropriately qualified chemist if required by the Council;
(d) the proposed duration of storage of the waste;
(e) the manner in which waste will be removed;
(f) the identity of the contractor who will remove the waste;
(g) the date of removal of the waste;
(h) the quantity of the waste to be removed; and
(i) the exact place and address where the waste will be disposed of and provide confirmation from the disposal facility that such waste will be accepted for disposal.
It is an offence to carry on an activity which generates hazardous or HCRW without an approved IWMP.
Only an accredited service provider may transport hazardous and HCRW and must do so in accordance with the conditions of an accreditation permit issued to him or her as well as the requirements of any relevant SANS codes, in respect of the type of vehicle, the markings and manner of construction of such vehicle, procedures etc.
Industrial waste and special waste
Only an accredited service provider may collect industrial or special waste from premises where it is stored, transport and dispose of it at a waste disposal facility designated by the Council to receive such waste. A waste generator generating industrial waste must submit an IWMP to the Council.
Recyclable waste
An owner or occupier of premises or any other person must prior to commencing an activity involving the re-use, reclamation or recycling of waste, comply with national and provincial legislation and standards and the latest edition of the relevant SANS Code of Practice for such activity and provide the Council with a copy of his or her IWMP and such other information as the Council may require. Unless these requirements are complied with no owner or occupier of premises or any other person may temporarily accumulate, sort, store or stockpile recyclable waste on any premises. Only an accredited service provider may collect recyclable waste.
Waste minimisation and recycling
All generators and holders of waste must within their power, take all reasonable steps to:
- avoid the generation of waste and where such generation cannot be avoided, to minimise the toxicity and amount of waste;
- reduce, re-use, recycle and recover waste;
- where waste must be disposed of, ensure that is treated and disposed of in an environmentally sound manner;
- manage the waste in such a manner that it does not endanger health and the environment or cause a nuisance through noise, odour or visual impacts;
- prevent any employee or person under his or her supervision from contravening the Waste Act; and
- prevent waste from being used for any unauthorised purpose.
Any person who is undertaking reduction, re-use, recycling or recovery of waste including scrap dealers, waste treatment facilities and formalised recycling groups must, before undertaking that activity, make sure that the activity is less harmful to the environment than the disposal of such waste.
No person may undertake to collect, transport, sort, store, re-use, recycle or recover waste with the intention of making profit including scrap dealers, waste treatment facilities and formalised recycling groups unless the person is accredited in terms of the by-law. This does not apply to transportation or collection of own recyclable waste; persons engaged in fundraising ventures or bona fide non-governmental organisations if the collection, transportation, sorting, storing, re-using or recycling of waste is not for profit. An accredited service provider must handle, treat or dispose of recyclable waste at a permitted waste handling, treatment or disposal facility.
Waste pickers must establish waste picker association(s) and may not pick waste unless being registered with an association and accredited (permitted) by the Council. As part of a picker’s accreditation he or she must be issued with an identification card showing the full name, designated picking area and validity period of accreditation. It is unsure how this requirement will be enforced, including the power of the Council to revoke a picker’s permit.
Commercial services
Only an accredited service provider may provide a commercial service (including recycling). Persons requiring a commercial service, must satisfy themselves that the service provider is accredited by the Council to provide the service and is licensed by the national or provincial authority if a waste management licence is required for the service it provides. Accreditation permit requirements are set out in section 61.
9) City of Cape Town
- Air Quality Management By-law – Amendment
Two minor amendments were made to the by-law, namely:
- Open burning (of articles or vegetation) (section 19)
- Exemptions (section 31): where a person applies to the City for an exemption, written notice must be given to abutting and affected neighbours, or a notice must be published in at least two newspapers, one circulating provincially and the other within the jurisdiction of the City.
10) Polokwane Local Municipality
A new Outdoor Advertisement By-law was published. It is, however, not clear whether this is the actual by-law or a draft as reference is made to both in the first pages. The version published in the Provincial Gazette also contains several sections in red font. It therefore looks like it is a draft released for public comment.
If you have any questions please feel free to contact us.
Kind regards
MARK DITTKE