On 5 April 2019, the Minister of Environmental Affairs gave notice of her intention to require any person who lawfully conducted a hazardous waste management activity on 1 July 2009, when the National Environmental Management: Waste Act, 2008 (Waste Act) came into force, to apply for a waste management licence (WML). In terms of the notice, lawful users are required to apply for a WML within a period of one year after publication of the final notice.
The notice correctly records that the regulation of hazardous waste activities was fragmented before the Waste Act. As a result, the lawfulness of a number of waste management activities is often debatable. This creates challenges from a compliance and enforcement perspective, which the Minister would like to regularise.
The intended outcomes of the notice are that:
the holders of valid authorisations for hazardous waste activities pre- the Waste Act are granted one year to apply for a WML for the waste management activity;
hazardous waste management activities which commenced before 1 July 2009 without a valid authorisation must apply for a WML immediately, and the waste management activities which commenced after 1 July 2009 without a valid WML are regarded as illegal activities and should be rectified; and
the notice will apply to all hazardous waste management activities, which include but are not limited to waste disposal, landfilling, recycling, reuse, treatment and recovery of waste.
The notice is currently in draft form and has been published for public comment, which comments must be submitted by 6 May 2019.
Glaring problems with the notice include its failure to specify the consequences of non-compliance with the direction to apply for a WML, although the notice does say that the specified persons are "required" to apply for a WML. This implies that if one fails to do so, one will lose the previous valid authorisation.
Other practical difficulties include having to follow a WML application, including the potential for the application to be rejected and/or appealed and the risk of more onerous conditions being imposed in the WML (at a greater cost of compliance).
Although the notice offers clients an opportunity to regularise historic authorisations under the Waste Act, the implications of having to do so will need to be carefully considered. The lawfulness of old hazardous waste facilities will be a crucial factor that will need to be verified in the WML submission.
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