ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT (SOUTH AFRICA) January 2023
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Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during January 2023.
1) Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022
The Department of Employment and Labour published this Code of Practice on 24 June 2022 in GG 46596. It is still valid, despite the Covid Regulations under the Disaster Management Act having been withdrawn.
The Code was corrected by replacing the definition of the “HBA Regulations” (hazardous biological agents) to refer to the new Regulations published in GG 46051 of 16 March 2022.
No further changes were made, so no new action is required.
2) National Environmental Management Act
- Waste Tyre Regulations, 2017 – DRAFT Amendment
A draft amendment was published for comment.
These Regulations are aimed primarily at the tyre industry and collectors, and not generators of waste tyres.
Having said that, the proposed amendment to Reg 4 will potentially affect all companies and individuals. The following, among others, are relevant as they state that no person may:
- Recover or dispose of a waste tyre in a manner that is likely to cause pollution of the environment or harm to health and well-being
- Dispose of a waste tyre at a waste disposal facility.
In terms of the National Norms and Standards for Disposal of Waste to Landfill, GN R 636 of 23 August 2013, the disposal of whole tyres was already prohibited as of 23 August 2013, and quartered tyres as of 23 August 2018.
Where applicable, proof of what happens to collected tyres should be obtained.
3) Waste Act
- Draft Household Hazardous Waste Management Strategy
This draft was released for public comment. It is intended to form the basis for municipalities to build upon when introducing collection of household hazardous waste.
4) Foodstuffs, Cosmetics and Disinfectants Act
- DRAFT Regulations relating to the Labelling and Advertising of Foodstuffs
These extensive DRAFT Regulations were published for public comment (the deadline for submission is 30 April 2023). Should they enter into force they will repeal the Regulations relating to the Labelling and Advertising of Foodstuffs (GN R 146 of 2010), as well as the amendments made thereto (GN R 1091 of 2010 and GN R 45 of 2012).
In addition, Reg 6(2) of the Regulations relating to the Use of Sweeteners in Foodstuffs, GN R 3128 of 1991, will be repealed. Reg 6(2) deals with certain labelling restrictions and claims.
5) Occupational Health and Safety Act
- Major Hazard Installation Regulations
These Regulations were promulgated on 31January 2023 but will only enter into force on a date determined by the Minister by notice in the Government Gazette. At that point they will then also repeal the current Major Hazard Installation Regulations, GN R 692 of 2011.
The new Regulations make it far clearer when a site will be regarded as MHI. They also introduce the concept of low, medium and high hazard establishments, all of which are defined in Reg 1. Essentially this is where specified volumes of certain identified substances are exceeded. These are set out in Chapters 1 and 2 of Annexure A of the Regulations.
Regulations 11, 12 and 13 do not apply to low hazard establishments.
Regulations 12 and 13 do not apply to medium hazard establishments.
They do not apply to nuclear installations registered in terms of the Nuclear Energy Act.
The duty holder (defined as an employer, a self-employed person, a user or a pipeline operator who is in control of an establishment) must designate a responsible person in writing and in a full-time capacity in respect of every premises where an establishment is operated. (Reg 3(1)
The chief inspector, the relevant chief director: provincial operations and the local government must be notified within ninety days
- before the erection of an establishment; or
- when there is an anticipated change to an existing establishment.
The notification of an existing establishment must be updated and sent to the above authorities.
Both the above notifications must be accompanied by:
(a) proof of permission or approval from the relevant local government on land use indicating the exact location of the site;
(b) a letter of designation contemplated in regulation 3(2) and the responsible person’s competency profile;
(c) an inventory list and safety data sheets of all the dangerous substances that resulted in the installation being classified as an establishment;
(d) a statement containing the envisaged maximum quantity of all the substances that may be present at the establishment at any one time;
(e) the most recent risk assessment report contemplated in regulation 10;
(f) a site map showing the establishment location and indicating developments around the vicinity of the establishment;
(g) a substance location plan drawn to a scale of not less than 1 to 2 500 which identifies the area on the site where the dangerous substances will be stored, handled, used or processed, showing the location of the major items of plant used in such activities;
(h) information regarding the neighbours or other establishments within the impact zone, including–
(i) sites that are likely to be affected by a major incident and their exact distances from the establishment;
(ii) known future development that might increase the risk or consequences of a major incident; and
(iii) other establishments and their exact distances;
(i) proof of the publication of the advertisement contemplated in subregulation (4); and
(j) where applicable, the latest version of the major incident prevention policy. (Reg 4).
An advert must be placed in English and the predominant language in the area, in at least one newspaper, and notices must also be posted, providing details of the establishment, nature of dangerous substances, contact details, where and when the risk assessment may be viewed. Interested and affected parties may make written representations to the relevant local government and the chief inspector within sixty days after the publication. (Reg 4)
After considering the application the chief inspector may, on payment of the registration fee (set out in Annexure B, with the highest amount being R 450.00) register the premises as MHI. The chief inspector is, however, also entitled to refuse the registration. A copy of the certificate must be conspicuously displayed by the duty holder. (Reg 5)
The registration is valid for five years and can be renewed against a fee (currently also only R 450.00 maximum). (Reg 6)
Where there is an alteration the duty holder must inform the chief inspector, relevant chief director: provincial operations and the local government within fourteen days. (Reg 7)
A duty holder must, after consultation with the relevant health and safety representatives or health and safety committee, ensure that an approved inspection authority carries out a risk assessment in accordance with SANS 1461 at intervals not exceeding five years or when there is a change in the establishment. The results of the assessment must be made available to the representatives or committee who may comment thereon. Where the assessment was reviewed or revised, without a change to the establishment, the duty holder must submit an updated copy to the chief inspector, relevant chief director: provincial operations and the local government within sixty days. (Reg 10)
The duty holder must prepare and retain a written major incident prevention policy (to be in place with 36 months after the entry into force of the Regulations), as contemplated in Annexure C, on the
(a) construction and building of the establishment;
(b) change in the establishment; or
(c) safe operation of the establishment.
The policy must include at least
(a) the aims and objectives of the policy;
(b) the roles and responsibilities of the establishment’s management;
(c) process safety performance indicators;
(d) commitments towards the maintenance and continual improvement of the policy;
(e) the aims and objectives of the–
(i) emergency plan;
(ii) evacuation plan regarding the–
(aa) speedy evacuation of persons;
(bb) roll-call after evacuation; and
(cc) plant shut down;
(f) reasons for revision;
(g) mandatory agreements; and
(h) the process safety management system with principles specified in Annexure D.
The policy must be reviewed every five years or when there is a change in the establishment which renders the existing policy inadequate. (Reg 11)
The duty holder of a high hazard establishment must prepare a comprehensive, site-specific, safety report, which must be
(a) developed during the design phase and be continually updated until the start date of operations; and
(b) maintained for the duration of the life of the establishment.
Further requirements for the report are spelt out in Reg 12 as well as Annexure D. (Reg 12)
A licence is required to operate a high hazard establishment. (Reg 13)
A local government must not permit the erection of a new establishment or the expansion of an establishment at a separation distance that poses an unacceptable risk in terms of the risk assessment. A new development may only be permitted where there is a separation distance which will not pose an unacceptable risk in terms of the assessment. Any new property development adjacent to an establishment that will result in that new development being declared an establishment is not allowed. (Reg 14)
The relevant local government must give consent for the on-site emergency plan and participate in the annual emergency test drill as contemplated in Reg 15(4)(e). It is responsible for the off-site emergency plan to be followed outside the premises of the establishment. The local government must further prepare an off-site emergency plan in accordance with SANS 1514 and in consultation with the duty holder and interested or affected persons, within 24 months after the entry into force of these Regulations, and thereafter immediately for new establishments,. The off-site emergency plan must be reviewed when there are significant changes to the hazard profile of the area. (Reg 14)
The duty holder must, immediately after submission of the initial notification to the authorities (see Reg 4), and in consultation with the relevant health and safety representatives or committee, appoint in writing an emergency coordinating team consisting of at least the responsible person contemplated in Reg 3, and a representative from the committee. An on-site emergency plan must be developed (before the establishment commences operations) in consultation with the emergency coordinating team and in accordance with SANS 1514. The plan for an existing establishment must be aligned and updated to SANS 1514 within twelve months after the entry into force of the Regulations. The plan must be approved by the local government. It must be tested or exercised in practice at least anually and necessary steps must be taken to arrange for the local government to participate. The plan must be reviewed at least once every three years. (Reg 15)
Notice must be given to the chief inspector within 48 hours of a major incident or an incident which activated the emergency plan. An investigation must be done, and a preliminary incident report must be submitted within seven days after an emergency occurrence and a major incident. The final report must be submitted as soon as reasonably practicable but not later than six months after the incident. All near misses must be investigated and recorded in a register. In the event of an emerging major incident or an emergency occurrence that was or may have been caused by a dangerous substance, the supplier of that dangerous substance must be informed. (Reg 16)
Training must be provided to all employees dealing with
(a) the scope of the Regulations;
(b) the nature of the establishment;
(c) potential major hazards and associated major incidents;
(d) potential risks to health and safety caused by the identified major hazards;
(e) the practices and control procedures for a major incident;
(f) the content of the emergency plan and that visitors also are conversant with such content; and
(g) the safety protocols and measures to be followed on-site. (Reg 17)
Suppliers of dangerous substances must supply a safety data sheet and provide basic information for training on the use and handling of the substance. Where a supplier was informed of an emergency incident it must inform all clients supplied with that substance of the emerging potential dangers surrounding the dangerous substance. (Reg 18)
A contravention of the Regulations may result in a maximum fine of R 5 million or imprisonment of up to two years.
6) National Forests Act
The new annual list of protected tree species was published. In addition, four tree species were added to this.
No relevant provincial legislation was published this month.
No relevant by-laws were published this month.
If you have any questions please feel free to contact us.