Waste exclusion regulations, 2018 - Moving towards a circular economy

• Africa
• South Africa

• Environment

01-08-2019

Introduction

A circular economy is an economic system characterised by the trading of products and services in closed loops or cycles. The system is designed to be regenerative insofar as it aims to retain as much value as possible from used products, substances or materials.

The benefits of moving toward a circular economy are extensive. A circular economy has the potential to drive economic growth and job creation, reduce dependence on mining and importation of raw materials and avoid pollution and environmental damage.

Despite the perceived benefits, strict and cumbersome legislative requirements have ultimately precluded industry from exploiting these potential social, economic and environmental benefits.

It is anticipated that this situation is likely to change with enactment of the long awaited “Waste Exclusion Regulations” (“the Regulations”) which came into effect in July 2018.

Essentially, the Regulations provide a mechanism to exclude a type of waste from the definition of waste. Once excluded, that waste can be recovered, recycled and re-used for a beneficial purpose without having to comply with cumbersome legislative requirements.

It is expected that the Regulations will stimulate and encourage a circular economy in South Africa.

A definition of “waste”

Prior to its amendment in 2014, the National Environmental Management: Waste Act 59 of 2008 (“NEMWA”) included a definition of “by-product”.

A “by-product” was defined as “a substance that is produced as part of a process that is primarily intended to produce another substance or product and that has the characteristics of an equivalent virgin product or material”.

Before the 2014 amendment, by-products were specifically excluded from the definition of waste. The NEMWA recognised that a substance which had the “characteristics of an equivalent virgin product or material” could be used as a raw material in other processes and excluded it from regulation under the NEMWA. Industry was provided with the opportunity to proactively find markets for these substances that would otherwise have been disposed of at landfill sites.

However, the Department of Environmental Affairs (“DEA”) applied a very strict interpretation of the definition of “by-product” which made it difficult for most substances to fall within the ambit of the definition.

The 2014 amendment removed the definition of by-product from the NEMWA and amended the definition of waste to provide that:

“any waste or portion of waste, referred to in paragraphs (a) and (b), ceases to be a waste […] where the Minister has, in the prescribed manner, excluded any waste stream or a portion of a waste stream from the definition of waste”.

The Minister made the Regulations to exclude any waste stream or a portion of a waste stream from the definition of waste in terms of section 69 (1) (dd) read with section 1 (definition of waste) of the NEMWA.

The elements of recovery, recycling and re-use and their respective legislative requirements

The NEMWA introduced the concepts of recovery, recycling and re-use of waste into South African legislation for the first time.

Section 1 of the NEMWA provides the following definitions:

• “Recovery” means “the controlled extraction or retrieval of any substance, material or object from waste”;

• “Recycle” means “a process where waste is reclaimed for further use, which process involves the separation of waste from a waste stream for further use and the processing of that separated material as a product or raw material”; and

• “Re-use” means “to utilise the whole, a portion of or a specific part of any substance, material or object from the waste stream for a similar or different purpose without changing the form or properties of such substance, material or object”.

The “List of Waste Management Activities That Have, or are Likely to Have, a Detrimental Effect on the Environment” (as amended) (“List of Waste Management Activities”) provides that “no person may commence, undertake or conduct a waste management activity listed in this Schedule unless a waste management licence is issued in respect of the waste management activity”. The listed waste management activities include the recovery, recycling and re-use of waste.

A waste management licence is required where the waste management activity meets specific technical qualifications, such as volume, area and type of waste (general or hazardous). For example, a waste management licence is required for “the recycling of general waste at a facility that has an operational area in excess of 500m2 […]”.

In order to obtain a waste management licence an organisation is required to conduct an environmental impact assessment in terms of the Environmental Impact Assessment Regulations, 2014 (as amended).

These costly and lengthy assessments have deterred organisations from obtaining the necessary waste management licences, resulting in either unlicensed facilities conducting waste management activities, or the waste simply being discarded to landfill. Producers of waste have further been discouraged from sending their waste to facilities that are unable to obtain the requisite licences.

This has ultimately limited the progression of South Africa’s waste economy and precluded industry from the potential social, economic and environmental benefits.

Enter: The Waste Exclusion Regulations, 2018

The Regulations are a well-received step towards removing the legislative barriers to economic growth, job creation and social upliftment through recovery, recycling and re-use of waste, otherwise destined for landfill.

The purpose of the Regulations is to:

• prescribe the manner in which a person may apply to the Minister of Environmental Affairs (“the Minister”) for the exclusion of a waste stream;
• exclude permitted uses of a waste stream or a portion of waste stream from the definition of waste; and
• promote diversion of waste from landfill disposal to its beneficial use.

A person or any group of persons who generate waste may submit an application to the Minister, however, the Regulations do not apply to generators of domestic waste which falls within the jurisdiction of a municipality.

In order to apply for an exclusion, an applicant must lodge the application using the prescribed application form. It is incumbent on the applicant to demonstrate that the waste is being or has been or will be used for a beneficial purpose either locally or internationally.

In addition, the applicant must undertake a risk assessment that shows that the intended use of the excluded waste can be managed in such a way as to ensure that such use will not result in significant adverse impacts on the environment.

The Consequences of Excluding A Waste Stream from The Definition of Waste

The Regulations recognise that components of a waste stream have characteristics that are equivalent to raw material that can be utilised as a resource.

When a waste stream or a portion of a waste stream has been excluded from the definition of waste, that waste stream will no longer be considered as “waste”. Consequently, the excluded waste will not be regulated in terms of the List of Waste Management Activities.

Activities involving the excluded waste stream, such as recovery, recycling and re-use, will not require a waste management licence; instead they will be managed in terms of a risk management plan.

It is anticipated this will improve efficiencies, reduce costs and allow organisations to reap the benefits associated with recovery, recycling and re-use of the excluded waste streams that were previously diverted to landfill.

Examples of Waste Streams for Exclusion

Since the Regulations were enacted, several applications have been made to the Minister for the exclusion of a waste stream or a portion of a waste stream for beneficial use from the definition of waste. The public comment period ended in May 2019 and we are awaiting a final decision on the applications.

The applications are for the exclusion of the following waste streams from the definition of waste:

1. Waste Slag from Ferrochrome Metallurgy

Slag is waste matter that is separated from metal during smelting, such as iron and silica that is removed during copper and lead smelting. Slag can be used for road construction and in cement.

2. Ash from Combustion or Gasification Processes

Ash is a by-product created during the combustion or gasification process, such as the firing of boilers with coal or biomass. The ash can be used for brickmaking, cement production or fertilizer.

3. Gypsum from Pulp, Paper and Cardboard Production and Processing

Gypsum is a rock like mineral that is commonly used in pulp, paper and cardboard production. Gypsum waste may be used as a soil conditioner or for the production of inert products such as boarding for ceiling panels, wall partitioning and flooring.

4. Biomass from Pulp, Paper and Cardboard Production and Processing

Biomass is a non-fossilised and biodegradable organic material originating from plants, animals and micro-organisms.

Some examples of biomass include agricultural wastes such as begasse from sugar cane, animal slurry and poultry litter. Biomass has several uses such as compost, soil conditioner and animal bedding.

Most significantly, biomass can be used as a source of renewable energy. Furthermore, the use of biogas, the mixture of gases produced by the breakdown of organic matter, is better for the environment, can reduce an organisation’s electricity costs over the long term and reduces reliance on the state energy grid.

A register of excluded waste streams will be maintained and can be accessed on the South African Waste Information Centre’s website: http://sawic.environment.gov.za/

Conclusion

The Regulations, by recognising the intrinsic value of waste, have laid a foundation for an invigorated circular economy.

Private organisations are now able to benefit from the wastes that are produced by their operations, which would otherwise have been destined for landfill. Wastes can now be redirected away from disposal and toward recovery, recycling and re-use. In addition to the reduced costs associated with disposal, an organisation can potentially benefit financially by charging a fee for their waste.

The potential opportunities in the circular economy are abundant. Organisations are encouraged to consider and utilise the opportunities created by the Regulations for their benefit.

Should you require our environmental team to assess your legal requirements, or where you may benefit for the Regulations, please do not hesitate to contact us.