Revise the SA Waste Classification and Management System

The South African Waste Classification and Management System (WCMS) cannot be regarded as good environmental governance.  In short, the WCMS requires a complete revision to ensure that it meets the requirements of South African administrative legislation, and that it is aligned with modern international approaches to environmental protection and regulation.

In this post, we outline some of these international approaches and the applicable South African administrative legal requirements, and describe how the WCMS works, and how it fails as a governance instrument.

Get coffee – its long!

The TL:DR version? The Waste Classification Regulations are not based in scientific and site-specific verities, and require revision.

Discussion points:

Introduction

The Department of Environmental Affairs (“DEA”) embarked in 2009 on a process towards creating an integrated system for the classification of waste under the National Environmental Management: Waste Act 59 of 2008 (“NEM:WA”).  The outcome of this process was the Waste Classification and Management System (“WCMS) as published in August 2013, which is contained in three (3) Regulations, and which inter alia establishes a methodology for the classification of all wastes (GN R. 634)[1]; provides methods for the assessment of wastes destined for landfill disposal (GN R. 635)[2] to determine the type of landfill site on which it can be disposed; and stipulates the design requirements for the construction of different types of landfill (GN R. 636).[3].  As mining residue deposits and mining stockpiles did not resort under the ambit of the NEM:WA at the time the WCMS was being developed, the considerations for the classification of waste and for the design of waste disposal sites was primarily aimed at sanitary landfills that receives putrescible municipal wastes, and the assessment of industrial waste for co-disposal in a sanitary landfill.

GN R. 634 is aligned with the Globally Harmonised System of Classification and Labelling of Chemicals (“GHS”), as specified in the South African National Standard (SANS) 10234.[4]  The GHS, as captured in GN R. 634, classifies hazardous substances according to the type and degree of risks that chemical compounds pose to human health and the environment in liquid, solid or gaseous states, irrespective of whether it is reused or recycled, and irrespective of the type of facility in or on which it is disposed.  In addition to GN R. 634, three (3) sets of Norms and Standards were published, for the storage of waste (GN 926),[5]; the assessment of waste for landfill disposal (GN R. 635), and for the design requirements for landfill sites (GN R. 636).  No further Norms and Standards were published yet for other types of waste management alternatives (such as recycling centers), and no further Norms and Standards were published yet for other types of waste disposal facilities.

The GHS contained in GN R. 634 is applicable to all types of wastes, irrespective whether it is disposed on land or not, and is not the subject of this discussion.  This post discusses some of the problems associated with of the Norms and Standards for the classification of waste for landfill disposal, as well as the inferred problems associated with the Norms and Standards for landfill disposal, when it is made to apply to waste disposal other than on a landfill.  It firstly outlines concepts to consider when managing potential impacts resulting from the disposal of waste on land, as well as the Legislative framework, concepts and context within which the  Regulations made to control such disposal operate, followed by a discussion on international approaches to determining appropriate environmental management measures, an evaluation of the Regulations against these concepts and approaches, and finally outlines options to address the misalignment of the legal and scientific verities in this respect.

Risks posed by the disposal of waste on land, and measures to manage such risks

There are three (3) factors that will determine whether a potential risk of harm to humans or to environmental components could exist as a result of the disposal of waste, namely:

  • the characteristics of the situation or contaminant (source/waste);
  • the vulnerability of the receptor (the ‘population at risk,’ i.e. human beings and/or the receiving environment) exposed to the situation or characteristics; and
  • the pathways of transport and exposure.

Possible generic sources, pathways and receiving environments at a typical waste disposal facility, as well as possible consequences associated with the disposal of waste on a typical waste disposal facility, are depicted below:

CBSS Source-Receptor-Pathway generic model

In environmental management and environmental risk assessment, a thorough understanding of terms and definitions is essential, and the following concepts are considered important in this respect:

  • Risk” is defined as “a combination of the probability or frequency of occurrence of a defined hazard, and the magnitude of the consequences of such occurrence[6].
  • All potential risk exposures are caused by “hazards”, which are defined as “conditions or circumstances that could give rise to harm”.
  • A risk is therefore posed when there is a source that could be regarded as a hazard, a potential transport or exposure pathway, and a receptor (receiving environment, i.e. humans and/or ecosystems).[7]

The above implies that although there may be a source of contamination, if there are no pathways of transport and exposure, or if there are no receptors that could be affected by the source, that there will be no consequences, and therefore no need for the implementation of expensive management measures.  On the other hand, if there are consequences, it is often not possible to change the characteristics of the source, and management measures have to be implemented are aimed at blocking transport and exposure pathways, through for example the establishment of suitable bufferzones or barrier systems that will protect the receptor from the source.

A source-pathway-receptor (“SPR”) investigation therefore need to be undertaken as part of an environmental risk assessment (“ERA”), to determine appropriate management measures.

The determination of management measures from a SPR-perspective, entails establishing site-specific interventions that will break the linkages between sources, pathways, and receptors, to ensure that the accommodation of residues in the environment does not lead to adverse effects on human health and the environment (including the users of the environment, albeit air, water, or soil).

There are three primary interventions by means of which these linkages can be broken,[8], as illustrated below, namely:

  • Source control, such as reducing the quantity of the waste, or the quality of its constituents;
  • Pathway management, such as using a barrier or a buffer zone to prevent contaminants from the source from reaching receptors; and
  • Modifying exposure of receptors, for example placing restrictions on certain types of land use.
The South African Waste Classification system requires revision

In this respect, it is important to note that “environmental management measures” entails more than just the implementation of a barrier system to break pathways of transport and exposure.  A number of management measures can be implemented to prevent the exposure of receptors due to the disposal of waste on a waste disposal facility.  These include source controls such as reducing the moisture content in the waste; as well as managing pathways, by implementing measures such as dust control, continuous rehabilitation, capturing runoff in stormwater drains and PCDs, and a bufferzone around the facility.  Moreover, if the disposal of waste on land will not affect receptors, such as the users of any surface- or groundwater resources in its vicinity, there is no risk, and thus no need for measures aimed at preventing such a non-existent risk.

Concepts, Context, and Legislative Framework

The environmental right contained in section 24[9] of the Constitution of the Republic of South Africa of 1996 (“Constitution”) aims to ensure an environment that is not harmful to human health and well-being, by drawing a clear distinction between ensuring sustainable use of natural resources on the one hand, and preventing harm, pollution and degradation of the environment on the other.  By using the term “harmful” in section 24, the drafters of the Constitution directly invokes the need for a risk-assessment on a site-specific basis.

The Environmental Management Act 107 of 1998 (“NEMA”)

The NEMA affirms this distinction, outlining the principles for sustainable development in section 2,[10] in particular the principles of pollution prevention, of following a risk-averse and cautions approach (precautionary approach in risk assessment), of integration and interrelation, and of giving specific attention to sensitive, vulnerable or stressed systems, when considering the selection and implementation of the Best Practical Environmental Option (“BPEO”).[11]

These principles have to be considered in all decision-making, and also implies that a site-specific risk-assessment need to be undertaken to arrive at a decision regarding appropriate management measures.[12]

The NEMA provides for the prior assessment of impacts in section 24F,[13] which states that “notwithstanding any other Act, no person may commence an activity listed in terms of section 24(2)(a) … unless the competent authority …, has granted an Environmental Authorisation (“EA”) for the activity…”.  Section 24(1) of the NEMA states that “ … the potential consequences for or impacts on the environment of listed activities or specified activities must be considered, investigated, assessed and reported on to the competent authority …, except in respect of those activities that may commence without having to obtain an EA in terms of this Act.”  Section 24(5) of the NEMA provides the Minister of DEA with the power to make regulations that, among others, contain the procedure to be followed in applying for, issuing of, and monitoring compliance with EAs; the preparation and evaluation of Environmental Impact Assessments (“EIAs”); and applications to be exempted from the provisions of any regulation in respect of a specified activity.

The Minister of DEA has promulgated these EIA-Regulations[14] in two parts, namely the General Regulations in terms of sections 24(5), 24M and 44, which specify the procedures to be followed in applications for EAs and exemptions; and the Listing Notices in terms of sections 24(2), 24(5), 24D and 44, which identify the activities that may not commence without an EA (“listed activities”), the competent authorities, and the type of assessment to be undertaken for each type of activity.  These provisions also emphasize the need to determine both impacts, and management measures, on a site-specific basis.

The National Environmental Management: Waste Act 59 of 2008 (“NEM:WA”)

The NEM:WA (as amended)[15][16] contains a similar distinction between sustainable use and pollution, and states in its preamble that it is inter alia aimed at reforming the law regulating waste management in order to protect health and the environment by providing reasonable measures for the prevention of pollution and ecological degradation and for securing ecologically sustainable development; through regulating the management of waste[17] by means of Norms and Standards; and by means of the licencing and control of waste management activities.

Chapter 2 (Part 2) of the NEM:WA provides for the development of an integrated system of Norms and Standards, which include the WCMS.[18]

Section 20 of the NEM:WA provides that waste management activities listed [19] in terms of section 19(2) require authorisation by means of a Waste Management License (“WML”) issued under Chapter 5 of the NEM:WA. Such a list was promulgated in GN 921, and paragraph 2 of GN 921 states that no person may commence, undertake or conduct a waste management activity listed in this Schedule unless a WML is issued in respect of that activity.  An application for such a WML must be prepared in accordance with the requirements of GN 921, with facilities that pose a lower risk, having less stringent requirements, as follows:

  • Category A activities require a basic assessment in terms of the EIA Regulations;
  • Category B activities require a full assessment in terms of the EIA Regulations;
  • Category C activities do not require an assessment in terms of the EIA Regulations, but must be conducted and managed in accordance with the published Norms and Standards relevant to that particular activity, and have to be registered with the relevant authority.

The National Water Act 36 of 1998 (“NWA”)

The National Water Act 36 of 1998 (“NWA”) also affirms this distinction between sustainable use of the resource and pollution, indicating in sections 2 and 3, that its purpose is “to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in a sustainable manner”, by among others “promoting the efficient, sustainable and beneficial use of water in the public interest”, and “reducing and preventing pollution and degradation of water resources”.[20]

This implies that the regulator of the water resource must ensure that the use of water resources is undertaken in a sustainable manner, and would not cause the pollution[21]of such resources.

Therefore, the NWA clearly distinguishes between obligations to ensure pollution prevention (see Chapter 3, entitled “Protection of Water Resources”, which contains section 19, “Prevention and remedying effects of pollution”) on the one hand, and on the other, the authorised use of water (in Chapter 4, entitled “Use of Water”, which contains the descriptions of activities that are regarded as “water uses” in section 21).[22]

Section 22 of the NWA, entitled “Permissible Water Use”, stipulates that a water use as described under section 21 can only be undertaken if it has been authorised under a Water Use License (“WUL”), unless it is permissible under Schedule 1; or permissible as a continuation of an Existing Lawful Use; or permissible in terms of a General Authorisation (“GA”) issued under section 39.

Overlaps between waste-related legislative requirements, and the Promotion of Administrative Justice Act 3 of 2000

There is an obvious overlap between the authorisation requirements for waste-related activities and facilities that are defined as ‘water uses’ in the NWA (requiring authorisation by means of a WUL), and the authorisation requirements for activities that are identified as “Waste Management Activities” under GN 921 (as amended), requiring authorisation by means of a WML, cooperative governance arrangements are contained in both these laws in order to prevent duplication in authorisation.[23]

In issuing an EA, a WML, or a WUL, or in attaching a condition to an EA, a WML, or a WUL, the relevant responsible or competent authority is performing an administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).  Section 3(1) of the PAJA stipulates that administrative action[24]  which materially and adversely affects the rights or legitimate expectations of any person, must be legally sound and administratively fair.  The decisions[25] that constitute administrative actions can only be taken under an empowering provision.[26]

The empowering provisions in terms of which the DEA or Department of Water and Sanitation (“DWS”) can make decisions regarding the issuing of an EA, a WML, or a WUL, or the compliance specifications in the conditions of such an EA, a WML, or a WUL, are those outlined above, namely section 24 of the NEMA, section 20 of the NEM:WA, and Chapter 4 of the NWA, as well as the requirements of regulations made in terms of these statutes.  Therefore, the decisions by the relevant authority to issue an EA, a WML, or a WUL, and to include (or exclude) compliance specifications in the conditions of such an EA, a WML, or a WUL, constitute administrative actions that is subject to review against the provisions of PAJA.

In terms of section 6 of PAJA, an administrative action (such as any decision relating to an EA, a WML, or a WUL, or the decision to include compliance specifications in the conditions of such an EA, a WML, or a WUL) is subject to review when the administrator who took it was not authorised to do so by the empowering provision, and/or, among others:

  • (d)    the action was materially influenced by an error of law;
  • (e)(iii) the action was taken because irrelevant considerations were taken into account or relevant considerations were not considered;
  • (e)(vi)  the action was taken arbitrarily or capriciously;
  • (f)(ii) the action itself is not rationally connected to: (cc) the information before the administrator; or (dd) the reasons given for it by the administrator;
  • (h) the exercise of the power or performance of the action is unreasonable to the extent that no reasonable person would have taken the action, etc.

The regulator who makes decisions regarding these authorisations must therefore collect all relevant information, and must apply its mind to determine whether an activity will be a sustainable use of the environment (including the water resource), and can be authorised as such, or whether cannot be authorised, because it will cause harm the environment (including the water resource and the users of the water resource).  In setting compliance specifications in the conditions for the authorisation, relevant site-specific scientific and technical considerations have to be taken into account, so that these compliance specifications are not unreasonable or irrelevant to the site-specific situation.

A regulator can therefore only take the decision to stipulate specific design requirements for a containment barrier system, if such requirements are based on scientific fact, and reasonable in the site-specific circumstances. For example, the risk to water resources posed by waste disposal facilities needs to be assessed scientifically, by evaluating both the type of waste, and the vulnerability of receptors, to determine the need for, and technical design requirements of, a containment barrier system.

This implies that the decision-maker must carefully consider all relevant factors at a specific facility, and establish site-specific regulatory criteria or acceptable risk levels or limits (“ARLs”) that will determine whether an activity will be causing pollution, and thus require a specific type of barrier system that will prevent pollution, or whether the activity will not be causing pollution, and thus do not require the implementation of such a barrier system.  The next two paragraphs therefore firstly discusses different approaches in the development of different regulatory criteria to site-specific situations, and secondly discuss the appropriateness of the WCMS to be used as a site-specific regulatory tool, in order to establish legal options in this respect.

Approaches to the Establishment of Regulatory Criteria from a site-specific perspective

The setting of “Regulatory Criteria” or “Standards” or “limit values” was one of the earliest means of controlling pollution, however, often only protected a certain subset of the resource, or was limited to a specific purpose, for example the control of point sources.  Contaminants can enter the environment from both point and non-point sources:  Point sources are discreet and defined, such as pipes of canals discharging effluents into surface water bodies, and primarily impacts on the water body into which it is being discharged.  Non-point sources are diffuse and intermittent, influenced by factors such as land use, climate, hydrology, vegetation and geology, and impacts from these are more difficult to determine than from point sources.  Non-point sources can affect surface or groundwater resources through runoff or seepage, which may contain all types of contaminants, from heavy metals to sediment, and usually result from the disposal or discharge of waste on land.[27]

Water pollution is defined by Keller as the degradation of water quality resulting from human activity as measured by biological, physical or chemical criteria, and this degradation is generally judged in terms of the intended use of the water, … its effects on public health, or ecological impacts.[28] The quality of water can also be influenced by natural phenomena, such as geology, which in some cases, may cause water to be unfit for human use and consumption, but that is not regarded as pollution.  Weale[29] supports this, stating that pollution is the introduction, as a result of human activity, of substances or emissions into the environment that either damage, or carry the risk of damaging, human health or well-being, the built environment or the natural environment.

This implies that substances can be introduced into the environment without causing damage to human health or well-being, the built environment or the natural environment.  Farmer agrees,[30] stating that a released substance can be safely introduced into the environment, and be regarded as a “contaminant”, but that when such substance causes harm or poses a risk, it is a “pollutant”.

This concept is echoed in the Constitutional right in section 24,[31] to an environment that is not harmful to human health and well-being, which requires legislative and other measures to be taken to prevent pollution on the one hand, and ensuring sustainable use of natural resources on the other, as discussed above.  As a legislative measure under the Constitution, the distinction between “sustainable use” and “pollution” has also been incorporated into the NEM:WA and the NWA, which confirms that activities such as “discharge of waste or water containing waste into a water resource” and “disposal of waste on land” are regarded as “water use”, and described as such in section 21(f) and (g).

The definition of “pollution” in the NWA[32] stipulates that as long as an impact from an activity does not make the water resource less fit for use for a beneficial purpose, and is not harmful to people, aquatic or non-aquatic organisms, resource quality, or property, it is an acceptable risk, and thus be regarded as a sustainable use of the water resource, and not “pollution”.

Due to the possibility that  activities or water uses involving the disposal of waste on land have the potential to cause harm, they need to be regulated, which is why most of these activities or water uses require authorisation by means of a WUL and/or WML.  This means that the introduction of contaminants from effluents or wastewater into a water resource could be considered as “use” of the resource, and only when the level of exposure as a result of such introduction reaches a certain limit where it starts to cause harm, it will be considered “pollution”.

The setting of standards or ‘limit values’ for water resources is essentially establishing “cut-off” levels below or within which an impact on a water resource can be regarded as acceptable; and above or exceeding which an impact may cause harm to a water resource or its users, and thus constitute pollution.  Such standards or limit values are used by regulators to determine whether they need to take action to prevent the activity from causing harm to the environment and its users.  It is a key tool for environmental management, as it designates the level where regulatory intervention must happen.

Specifying such standards or limit values in a WUL, WML, or Regulation, and monitoring compliance with the specified limits, provides the Regulator with the means of determining whether an activity is causing harm to the resource or its users, and if these standards or limit values are exceeded, the regulator should become involved to ensure that actions are implemented, so that the resource and its users are protected. (In addition to setting standards or limit values, which triggers involvement by the Regulator, the use of a “de minimis[33] level or “No Observed Adverse Effect Level” (“NOAEL”), by those undertaking the disposal activity, as a “trigger” to alert them that the NOAEL has been exceeded, and that action need to be taken to prevent the standards or limit values from also being exceeded, is also extremely useful in preventing pollution.[34]  These “Action/Alarm Limit Values” or “ALVs” can act as an early warning mechanism, and is aligned with the precautionary approach.  It must however be noted that ALVs are not the same as site-specific ARLs, but are ‘early warning systems’ used by the responsible industry or mine to assist them to take action long before the Regulatory Criteria or ARLs are being exceeded.)

It is thus of utmost importance that these “Regulatory Criteria” should be scientifically defensible, and applicable to the site-specific situation.  Since the knowledge-base of the effects of anthropogenic activities on the environment is continually expanding, Regulatory Criteria such as ARLs should regularly be re-evaluated, to assess if it is still effective in adequately protecting the environment.[35]

Internationally, approaches to the setting of such “limit values” or “regulatory criteria” to establish control over potential environmental impacts have therefore evolved over the last century, from “rule-based” to “risk-based”:

rule-bsed vs risk-based approaches

This evolution is evident in the different approaches that have been followed in the past to to set limits designating what constitutes water pollution.  Two (2) of these were developed during the 1970s and 1980s, namely the pollution prevention approach, and the uniform (effluent) standard approach, but are limited in their use, because they only apply to point sources. As the disposal of waste on land is a potential non-point (or diffuse) source of pollution, when such disposal facility is not functioning properly, or when management measures and barrier systems fail, standards or limit values aimed at the control of point sources will therefore not be effective control measures. These two approaches will therefore not be applicable to the disposal of waste on land.  Moreover, neither of these approaches take the site-specific circumstances of the receiving environment into consideration, and they are essentially rule-based.

The approaches developed and used in South Africa to also address non-point sources of pollution are:

  • The receiving water quality objective (“RWQO”) approach, which was developed in the early 1990s, and which is based on the quality of water required for the receiving water body and its users.  It attempts to take the effects of both point sources and diffuse sources into account, and recognises the capability of the natural environment to take up or ‘assimilate’ certain contaminants into the hydrological and biological cycles.  This is aligned with the carrying capacity principle in section 2 of the NEMA.  The application of this approach is technically more demanding than the uniform (effluent) standard approach, because it requires a thorough understanding of the fate of contaminants in, and of their impacts on, the site-specific receiving water environment.  It is however still somewhat biased towards receiving surface water bodies, and becomes less effective when applied to receiving groundwater resources, unless the background conditions of local aquifers are taken into consideration.  With regard to substances that are known to be harmful, the RWQO approach is also ineffective, because of the difficulty of determining “safe” RWQOs for these contaminants, instead of establishing a list of priority pollutants that are disallowed, in accordance with the precautionary approach.[36]
  • The differentiated risk-based approach has been adopted internationally in more recent times [37] (including in South Africa), which entails the integration of complementary approaches and methods in order to develop risk-based Regulatory Criteria (ARLs) on a site-specific basis. This is aligned with the principle of integration provided for in section 2 of the NEMA.   Because different receptors react differently to similar levels of contamination, because some substances do not have a “minimum” threshold for effect, and because conditions differ on a site-specific basis, this approach makes more sense when evaluating impacts on a site-specific basis.  It entails the integration of both the precautionary approach and the carrying capacity principle, and therefore integrates the pollution prevention approach with the RWQO approach, and applies it on a site-specific basis.  This is aligned with the principles of pollution prevention, carrying capacity, the precautionary approach, the protection of sensitive environments, and integration, as outlined in section 2 of NEMA.

The DWS Policy on Groundwater Quality Management, published in 2000,[38] adopted this differentiated risk-based approach, stating that “In South Africa’s situation of widespread and highly localised groundwater occurrence and use, it will be physically and economically impossible to protect all groundwater resources to the same degree. South Africa’s water policy does not aim to prevent impacts to the water environment at all costs since this would not allow the country to achieve much-needed social and economic growth. For effective and focused intervention, a differentiated risk-based approach is necessary, based on the vulnerability and importance of aquifers.

The DWS has furthermore published an updated Policy on Water Quality Management in 2016, [39] which re-emphasised following a differentiated risk-based approach as one of its guiding principles, highlighting the fact that administrative decisions should be based on the principles of administrative fairness in decision-making under the auspices of the provisions of the PAJA, taking cognisance of site-specific considerations, so as to not impose undue costs that may unnecessarily restrict socio-economic development.

The definition of “pollution” in the NWA, discussed above, stipulates that there are two sets of circumstances that will determine whether an activity will cause harm, and thus be regarded as “pollution”, namely if the activity cause the water to be less fit for use for a reasonable purpose that another user may have expected to be able to use it, or if the action cause the water to be harmful or potentially harmful to people, aquatic or non-aquatic organisms, resource quality, or property.  Because different catchments displays different characteristics, which depends on their local climate and topography and geology, these ARLs will differ from catchment to catchment, and from aquifer to aquifer.  This indicates that the following factors have to be considered when determining whether the disposal of waste or wastewater in a manner that may affect a water resource at a site-specific location will constitute a sustainable use of the resource, or pollution of the resource, in other words, when determining site-specific ARLs for water resources, namely:

  • The site-specific condition of the local surface- and groundwater resources, which is determined by its baseline or background quality and its hydrological characteristics (reservoir size and residence time); and
  • The intended or actual use of the water resource(s), and the requirements of its users, especially sensitive users and receptors.

The application of these factors to a site-specific situation will thus provide the ARLs that are to be specified for water resources when considering the acceptability of the disposal, and the need for specific types of barrier systems for the disposal facility as suitable management measures.  In cases where there are different local aquifers or surface water resources, more than one set of ARLs need to be developed on a site-specific basis.

The DWS, as the custodian of South Africa’s water resources, is  the primary decision-maker in this respect.  This implies that the differentiated risk-based approach, which underpins the policies of the DWS, should be followed when determining appropriate design requirements for barrier systems for facilities used for the disposal of waste, as well as when setting limit values for the classification of waste to be disposed of on land.

And this brings us to the crux of this discussion:  Does the Waste Classification and Management System follow a site-specific differentiated approach when it comes to setting regulatory criteria for the design of facilities used for the disposal of waste on land, and for setting Regulatory Limit Values for the Classification of waste? 

GN R.636 – Can the Regulation specifying the Design of facilities for the disposal of waste be regarded as appropriate in the context of  Administrative Justice Legislation?

GN R. 636[40] is entitled “Norms and Standards for Disposal of Waste to Landfill”, and prescribes liner design requirements for different “classes” of landfill sites, based on the type of waste, as classified under GN R. 635 (see discussion in next paragraph).  These design requirements are illustrated below:

The design requirements for landfill sites under the South African Waste Classification and Management System

It is evident that these design requirements is more stringent (and expensive) based on the increased perceived harm posed by the type of waste to be disposed of on the landfill, without taking cognisance of actual site-specific conditions.

Furthermore, neither the NEMA and its Regulations, nor the NEM:WA and its Regulations, define the term “landfill”.  GN 921 (as amended)[41] contains a definition for “facility”, which includes a number of facilities where a waste management activity takes place, including lagoons, waste storage facilities, waste disposal facilities (which include landfills, etc..  All waste disposal facilities are therefore not “landfills”.  As the WCMS was published in the same year as GN 921 (2013), it is evident that “landfill” is regarded as a specific type of waste management facility, and that not all waste management facilities can be regarded as “landfills”.  There are however no regulatory specifications for waste management facilities that are not landfills.

This is further confirmed by the very specific definition assigned to the term “landfill” in the civil engineering field of waste management, namely “an engineered pit, in which layers of mostly municipal solid waste are filled, compacted and covered on a daily basis. Engineered landfills consist of a lined bottom to prevent groundwater pollution; a leachate collection and treatment system; gas extraction (the gas is flared or used for energy production); groundwater monitoring; and a cap system”.[42]  The US EPA and other international organisations contain similar definitions for the concept of “landfill”, as the engineering design specifications for mono-disposal sites such as ADFs differ markedly from the engineering design specifications for landfills. Not all types of waste disposal facilities will generate gas, and in dry climatic conditions, even sanitary landfills will not generate significant leachate.[43]  GN 636 does not make provision for site-specific climatic conditions, or any other site-specific considerations, for that matter.

To make provision for the implementation of the “One Environmental System”, which was intended to bring mining activities under the umbrella of the NEMA and associated environmental legislation, the NEM:WA was amended in 2014,[44],[45] which inter alia expanded the ambit of applicability of the NEM:WA to residue deposits and residue stockpiles.  This also had the unintended consequence[46] that the WCMS, including GN R. 636, which was intended to be used for specifying design requirements for sanitary landfills, was now instantly made applicable to mono-disposal facilities such as residue deposits (which are not landfills!). This implied that specifications for the design of sanitary landfills, have now been made applicable to other types of engineered disposal facilities as well.  The DEA is fully aware of this discrepancy in the Regulations, and is currently in the process of addressing it.[47]

Recognising that facilities such as residue deposits are not “landfills”, the DEA promulgated GN R. 632[48] during 2015, that inter alia prescribes a separate system for the classification and categorisation of residue deposits and residue stockpiles.  Similar Regulations have however not yet been promulgated for other types of waste disposal facilities that are not “landfills”.

A further consideration is the fact that even the best lining system is subject to leaking or failure, and the US EPA indicates that it is acceptable for lined facilities to seep up to 200 ℓ/ha/day.  The WCMS does not stipulate actual values for acceptable or action leakage rates, but indicates that leakage rates must be motivated “based on total solute seepage and a risk assessment”.  The estimated leakage rate for a Class C lining system is around 1.3 ℓ/ha/day.  The action level leakage rates (the leakage rate at which it becomes necessary to install a lining geosynthetic barrier system) set by the US EPA is 500 ℓ/ha/day.  Certain types of waste management facilities, such as for ash disposal or mine tailings, seeps at less than 150 ℓ/ha/day, which implies that there would be no formal requirement for a geosynthetic barrier system if such facility was located in the USA.

Considering the design requirements contained in GN R. 636 to be applicable to all types of facilities used for the disposal of waste on land, can therefore not be justified from a legal, scientific, technical or engineering perspective, and will be regarded as administrative action that is potentially subject to review in accordance with section 6(e)(iii) and (h) of the PAJA.  In other words: The component of the South African Waste Classification system dealing with Landfill Design, requires revision.

GN R.635 – Can the Regulation specifying the Classification of Waste for Landfill Disposal be regarded as appropriate in the context of  Administrative Justice Legislation?

Considering the discussions above, the WCMS as published by the DEA does not follow a differentiated risk-based approach, but follows a uniform standards approach, and is still rule-based.   In addition to the classification of waste provided for in GN R. 634 in accordance with the GHS, GN R. 635 provides a further, specific classification system for when wastes are to be disposed of in landfills, and classifies such wastes into different Types, which in turn determines the design requirements for landfills that can accept the specific Type of wastes, as prescribed in GN R. 636, and discussed above.

The provisions in GN R. 635 essentially requires that a representative sample of the waste to be assessed has to be analysed by different prescribed methods, firstly to determine the Total Concentrations (“TCs”)[49] of chemical substances, and secondly to determine the Leachable Concentration (“LC”)[50]of these substances.  In accordance with sub-regulation 7(2), the results obtained are then compared against a prescribed Total Concentration Threshold (“TCT”) and a Leachable Concentration Threshold (“LCT”), which are used to determine the Type of waste, and the design of the sanitary landfill in which it can be disposed of.

This process is illustrated below:

The South African Waste Classification system requires revision

The Regulation indicates that the determination of TCT and LCT limit values are based on the following:

  • TCT0 limit values were obtained from the South African Soil Screening Values that are protective of water resources, and where there were no values available, limit values published by the Australian State of Victoria’s Environmental Protection Agency for fill material were used. If no limit values were available from any of these documents, the TCT0 values were determined by dividing the TCT1 values by a factor of 100;
  • TCT1 limit values were obtained from the land remediation values set by the DEA’s “Framework for the Management of Contaminated Land” of March 2010, and where there were no values available, limit values published by the Australian State of Victoria’s Environmental Protection Agency were used;
  • TCT2 limit values were derived by multiplying the TCT1 values by a factor of 4, as used by the Australian State of Victoria’s Environmental Protection Agency;
  • LCT0 limit values are set to be equal to Class 1 specifications in SANS 241:2011, the Drinking Water Standard. If no limit value was listed in SANS 241:2011,[51] limits set by other appropriate drinking water standards, such as the California Regulations, were used.
  • LCT1 limit values were obtained by multiplying the LCT0 values with a factor of 50, LCT2 values were derived by multiplying the LCT1 values with a factor of 2, and LCT3 limits were obtained by multiplying the LCT2 value with a factor of 4.

Although the Regulation purports to be risk-based, and assigns stricter design requirements for barrier systems based on the increasing “hazard” posed by the waste, it is certainly not a risk-based mechanism, but rather a type of rule-based uniform standard approach, based on flawed assumptions:

  •  The use of TCT-values based on screening values for soil remediation in residential areas, as contained in both the DEA’s “Framework for the Management of Contaminated Land” of March 2010, and the Australian State of Victoria’s Environmental Protection Agency for fill material, is based on the assumption that the soils underneath a waste disposal site will be ingested by people, which is simply not valid.
  • The second invalid assumption of GN R. 635, is that all substances that will leach out in the analysis of the waste, will either end up in soils underneath the site that; or into groundwater, and that such groundwater are to be used for potable purposes by people, without any further treatment, and should be a Class 1 water (LCT-values based on SANS 241, which is the South African National Standard to which drinking water should comply after treatment at a water purification works).

The underpinning assumptions of the Waste Classification Regulation, GN R.635,  therefore gives no consideration to the actual pathways by means of which the risk may be realised, or the site-specific circumstances of the environment where the facility is located, and specifies limit values based on non-existent , perceived receptors, at values that are not reasonable.

This simplified attempt at deriving “risk” has no scientific merit, and not rationally connected to the principles of sustainable development set out in section 2 of the NEMA.

The Regulations furthermore provides no recourse where it can scientifically be proven that a certain waste disposed in a specific environment will not lead to adverse effect, as was provided for in the Minimum Requirements documents,[52] which were used to classify waste before the promulgation of these Regulations in 2013.  This is regarded as unreasonable, and not to the benefit of the environment and environmental management as a whole, as it removes all incentives for the generator of the waste to find an optimal location for their disposal facility.  Why would they, if the assumption is in anyway the same everywhere, namely that (a) there is a usable source of groundwater underneath the facility, and (b) people drink the water underneath the facility every day of their lives, as if it was water from a municipal tap.  Considering the provisions of the PAJA, this cannot be regarded as reasonable and responsible decision-making.

A further example of the lack of scientific basis for the WCMS, is found in sub-regulation 7(6) of GN R. 635, which states that any waste with LC of any element below or equal to LCT0 (which would have classified it as a Type 4 waste), is regarded as Type 3 waste, irrespective the TC, on condition that the waste is stable and will not change over time, does not contain certain organic substances, and is not disposed with other wastes.  This appears to be an attempt to deal with the mono-disposal of stable industrial wastes, but actually creates a contradiction in itself, in that, was it not for this requirement, the waste could have been classified as a Type 4 waste, and not a Type 3 waste, and the disposal facility could have been designed according to Class D specifications, and not Class C specifications.  This in effect implies that any generator of such wastes are wasting their time and money with the classification of their waste, because even if it is a Type 4 waste, it will always be regarded as a Type 3 waste.  This has no scientific merit, and is certainly not reasonable.

Another concern is that the list of TCTs and LCTs, do not specify any limits for the major cations and anions, such as sulphate, chloride, magnesium, potassium, etc., and these are the variables that will have a definitive impact on aquatic ecosystems and riparian vegetation.

The manner in which the TCT and LCT limit values are derived, also requires further scrutiny, in addition to the fact that it is incorrectly based on an incorrect (and outdated)[53] drinking water standard, it uses arbitrary multiplication and division factors.  One example of the irrationality of this approach, can be found in the TCT for Barium, the 14th most abundant element in the crust of the earth.  Average Barium-levels in the earths’ upper crust is around 500 mg/kg, but the TCT0 is specified at 63 mg/kg.  It is most likely a value “derived” from the limits used by the Australian State of Victoria’s Environmental Protection Agency for fill material, and the value obtained (6,300 mg/kg) was simply divided by 100.  Apart from the fact that Australian soil conditions differ vastly from South African soil conditions, this absurdity implies that even excavated soil will have to be disposed in a Class C landfill, as it will be classified as a Type 3 waste.  It appears that the Regulator realised that this cannot be correct, as sub-regulation 4(2)(vii) of GN R. 636 indicated that “excavated earth material not containing hazardous substances” can be disposed to a Class D landfill.  However, should such excavated earth be subjected to a leach test in accordance with the prescriptions of GN R. 635, the naturally-occurring Barium-levels will render it a “material containing hazardous substances”, which has to be disposed in a Class C landfill. This also has no scientific merit, and is not reasonable or rationally connected with scientific veracities.

The DEA is fully aware of these flaws in GN R. 635, and is currently in the process of addressing it.[54]

Considering the limit values contained in GN R. 635 to be applicable to the disposal of waste on land, can therefore not be justified from a legal, scientific, technical or engineering perspective, and can be regarded as administrative action that is subject to review in accordance with section 6(e)(iii) and (h) of the PAJA. In other words: the component of the South African Waste Classification system dealing with classification of substances and setting of limit values based on leach tests, requires revision.

How to deal with a poor regulatory mechanism: Governance Options to address the Discrepancy between the DEA and DWS approaches to the assessment of the risks posed by the disposal of waste on land

Considering the above, it is evident that there is a significant discrepancy between the approach followed by the DEA, as contained in the WCMS, which is based on the outdated rule-based Uniform Standard Approach that applies to point sources, and the approach followed by the DWS, which is based on the modern differentiated risk-based approach, that takes site-specific verities into consideration.[55]

As discussed above, the WCMS is primarily aimed at setting norms and standards for the design of sanitary landfills that receives putrescible municipal wastes, and the assessment or classification of industrial waste for co-disposal in a sanitary landfill.  The classification of waste for disposal purposes, as contained in GN R. 635, is based on an indefensible assumption that all substances in the waste will leach into an aquifer from which water is to be used for potable purposes without any further treatment, and such water should meet SANS 241:2011 specifications for a Class 1 water, as if it was treated at a municipal water purification works.  The design requirements in GN R. 636 is aimed at sanitary landfills, and not at mono-disposal facilities. It is therefore evident that the South African Waste Classification System requires revision.

There are various governance options available to industries or mines to address this conundrum, where one is forced to comply with a set of Regulations that are not really applicable to activities on a site specific basis, and that is based in flawed science.   These options can be briefly summarised, as follows:

Option 1:      The Minister of DEA could be requested to issue a direction in terms of sub-regulation 8 of GN R. 634, which is entitled Waste Disposal to Landfill, and which stipulates inter alia that (1) Unless otherwise directed by the Minister to ensure a better environmental outcome … (a) waste generators must ensure that their waste is assessed in accordance with the Norms and Standards for Assessment of Waste for Landfill Disposal set in terms of section 7(1) of the NEM:WA for the disposal of waste to landfill; (b) waste generators must ensure that the disposal of waste to landfill is done in accordance with the Norms and Standards for Disposal of Waste to Landfill set in terms of section 7(1) of the NEM:WA”.  Such a direction should specify that waste that is not to be disposed of in a municipal landfill, or ash or mine tailings, need not be assessed in accordance with GN R. 635, and that facilities used for the disposal of these wastes are to be constructed based on the requirements of a Class D facility, as specified in GN R. 636, or according to specific engineering construction specifications.  This option does not require the promulgation of a changed or new regulation, and is an administrative process provided for under the current WCMS.

Option 2:      Alternatively, the Minister of DEA could be requested to amend GN R. 635, as follows:

  • By amending sub-regulation 7(6) of GN R. 635, to indicate that the mono-disposal of non-putrescible inorganic wastes where the LCT levels are below LCT0, are considered Type 4 wastes, as is the case for other wastes where the LCT levels are below LCT0; and
  • By amending the manner in which LCT limits are derived from Class 1 Drinking Water Standards to the Acceptable Water Quality Guidelines in the SAWQG for Drinking Water, by using local soil qualities instead of Australian soil qualities to base calculations on, and amending the calculation of TCT and LCT values by changing the multiplication and division factors, so that absurdities such as the Barium-levels are avoided.

Option 3:      The Minister of the DEA could be requested to promulgate a new Regulation, that specifically caters for the classification of waste that are not to be disposed in a sanitary landfill, and for facilities for the disposal of such waste, as was promulgated for residue stockpiles and residue deposits under GN R. 632.  This option should also be combined with Option #1, as the Minister would need to also issue a direction under sub-regulation 8 of GN R. 634, declaring that the WCMS does not apply to these types of waste, or waste disposal facilities.  This would further allow for setting out design requirements for other types of waste disposal facilities, such as pollution control dams.

Option 4:      The Minister of DEA could be requested to revise and amend the WCMS, specifically GN R. 635 and GN R. 636, in order to align them with the modern differentiated risk-based approach that determines risks and exposures on a site-specific basis;

Option 5:      The last generic option that could be considered by parties affected by this Regulation, is to initiate a legal review process of the WCMS in terms of sections 6(e)(iii); 6(f)(cc); and 6(h) of the PAJA, with the objective to have the Regulations set aside, based on the decisions by the Regulator to make the WCMS that was aimed at sanitary landfills applicable to other types of wastes, and other types of facilities; to use arbitrary multiplication and division factors in the calculation of TCT and LCT values; and to base the calculations used in the WCMS on drinking water standards and Australian soil standards.[56]

With the exception of Option #1, all these generic legal options require the amendment of Regulations, or the promulgation of new Regulations, or court cases, which could be a time-consuming process.

A further option, could entail that a policy decision is taken based on the cooperative governance arrangements contained in the NEM:WA and the NWA: In accordance with section 44(1) of the NEM:WA, the DEA must coordinate or consolidate the application for a WML with the application for a WUL under the NWA, without which the activity cannot be undertaken.  Furthermore, as the purpose of the barrier system is to protect the water resource, the requirements under the NWA relating to the protection of water resources have to be considered in the determination of management measures that can be regarded as the BPEO.  The DWS, as the custodian of South Africa’s water resources, is therefore the primary decision-maker in this respect, which decision should be implemented in the context of cooperative governance as provided for under the Constitution, as well as under these statutes.

The Minister of DEA could therefore issue a direction in terms of sub-regulation 8 of GN R. 634, which should specify that waste that is not to be disposed of in a municipal landfill, or ash or mine tailings, need not be assessed in accordance with GN R. 635, and that facilities used for the disposal of these wastes are to be constructed according to specific engineering construction specifications, and that the DEA will deter the decision for the authorisation of the facility to the DWS, to issue a WUL, and that the DEA will issue an Exemption under the NEM:WA for the requirement for a WML, provided that they have been consulted in the decision to issue a WUL for the facility.  This option also does not require the promulgation of a changed or new regulation, and is an administrative process provided for under the current WCMS.

Its implementation will facilitate cooperative governance arrangements already provided for used the legislation, and will successfully deal with the overlap and duplication under the NWA and NEM:WA as it relates to the disposal of waste on land.

Carin Bosman

23 May 2018

PretoriaSummaryArticle NameRevise the South African Waste Classification and Management SystemDescriptionThe South African Waste Classification System needs a complete revision to ensure that it meets the PAJA requirementsAuthor Carin BosmanPublisher Name CBSS cc

References

↑1GN R. 634, in GG 36784 of 23 August 2013. Waste Classification and Management Regulations
↑2GN R. 635, in GG 36784 of 23 August 2013. Norms and Standards for Assessment of Waste for Landfill Disposal
↑3GN R. 636, in GG 36784 of 23 August 2013. Norms and Standards for Disposal of Waste to Landfill
↑4SABS, 2007. SANS 10234. Globally Harmonised System of Classification and Labelling of Chemicals
↑5GN 926 in GG 37088 of 29 November 2013.  Norms and Standards for the Storage of Waste
↑6United Kingdom (UK) Department of Environment (DoE), 1998, A Guide to Risk Assessment and Risk Management for Environmental Protection. (UK Guidelines)
↑7DWAF, 2007.  Best Practice Guideline  G4: Impact Prediction
↑8DWAF, 2007. Best Practice Guideline H2: Pollution Prevention and Minimisation of Impacts
↑9“Constitution section 24: Everyone has the right (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, through reasonable legislative and other measures that – (i)   Prevent pollution and ecological degradation; (ii)  Promote conservation; and (iii) Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development
↑10NEMA section 2(4)(a): Sustainable development requires the consideration of all relevant factors including: (ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and rectified; (vi) that the development. use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; (vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; NEMA section 2(4)(r): Sensitive, vulnerable highly dynamic or stresses ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure. NEMA section 2(4)(b): Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the BPEO
↑11BPEO is defined in NEMA section 1 as ‘the option that will provide the most benefit or cause the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as the short term
↑12NEMA section 2(1):The principles set out in this section apply throughout the Republic to the actions of all organs of state that may significantly affect the environment and … serve as the general framework within which environmental management and implementation plans must be formulated … guide the interpretation. administration and implementation of this Act, and any other law concerned with the protection or management of the environment.”
↑13as inserted by section 3 of Act 3 of 2004, and amended by section 5 of Act 62 of 2008
↑14EIA Regulations”:  The first set of EIA Regulations were published in 1997, and the current set of EIA Regulations were published on 4 December 2014 in GN R. 982 in GG 38282: Environmental Impact Assessment Regulations, 2014, and the relevant listing notices in GN R. 983, GN R. 984 and GN R. 985, as amended by GN R. 324, GN R. 325, GN R. 326, and GN R. 327 in GG 40772 of 7 April 2017.
↑15National Environmental Management: Waste Amendment Act 26 of 2014 (“NEM:WA Amendment Act”), commencement date 2 June 2014
↑16National Environmental Management Laws Amendment Act 25 of 2014 (“NEMLAA”), section 19, commencement date 2 September 2014
↑17Section 1 of the NEM:WA Amendment Act defines “waste” to mean “(a) any substance, material or object that is unwanted, rejected, abandoned, discarded, or disposed of, or that is intended or required to be discarded or disposed of, by the holder of that substance, material or object, whether or not such substance, material or object can be reused, recycled or recovered and includes all waste as defined in schedule 3; or (b) any other substance, material or object that is not included in Schedule 3 that may be defined as a waste by the Minister by notice in the Gazette
↑18WCMS promulgated under the NEM:WA, as contained in GN R. 634 (Waste Classification and Management Regulations); GN R. 635 (Norms and Standards for Assessment of Waste for Landfill Disposal); and GN R. 636 (Norms and Standards for Disposal of Waste to Landfill) in GG 36784 of 23 August 2013.
↑19Activities requiring a WML were originally listed in GN 718, in GG 32368 of 3 July 2009, which has subsequently been repealed, and replaced with GN 921, in GG 37083 of 29 November 2013, which has been amended by GN 332 in GG 37604 of 2 May 2014, to remove the rehabilitation of contaminated land from the list; GN 633 in GG 39020 of 24 July 2015, to add the establishment or reclamation of a residue deposit or stockpile resulting from an activity which require a prospecting right or a mining permit in terms of the Minerals and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) to the list of waste management activities; and GN 242 in GG 40698 of 17 March 2017, to repeal the sorting, etc. of general waste from the list.
↑20NWA section 2(d), section 2(h), and section 3(2).
↑21Pollution” is defined in section 1 of the NWA to mean “the direct or indirect alteration of the physical, chemical or biological properties of a water resource so as to make it:-   (a) less fit for any beneficial purpose for which it may reasonably be expected to be used; or (b) harmful or potentially harmful (aa)     to the welfare, health or safety of human beings; (bb) to any aquatic or non-aquatic organisms; (cc) to the resource quality; or (dd) to property;
↑22NWA section 21. Water use. For the purpose of this Act, water use includes – (a) taking water from a water resource; (b) storing water; (c) impeding or diverting the flow of water in a watercourse; (d) engaging in a stream flow reduction activity contemplated in section 36; (e) engaging in a controlled activity identified as such in section 37(1) or declared under section 38(1); (f) discharging waste or water containing waste into a water resource through a pipe, canal, sewer, sea outfall or other conduit; (g) disposing of waste in a manner which may detrimentally impact on a water resource; (h) disposing in any manner of water which contains waste from, or which has been heated in, any industrial or power generation process; (i) altering the bed, banks, course or characteristic of a watercourse; (j) removing, discharging or disposing of water found underground if it is necessary for the efficient continuation of an activity or for the safety of people; and (k) using water for recreational purposes.
↑23Section 44(1) of the NEM:WA specify that “For the purposes of issuing a license for a waste management activity, the licensing authority must as far practicable in the circumstances co-ordinate or consolidate the application and decision-making processes in this Chapter with the decision-making process in Chapter 5 of the NEMA and other legislation administered by other organs of state, without whose authorisation or approval or consent the activity may not commence, or be undertaken or conducted.” In addition, Section 44(2) of the NEM:WA makes provision for the issuing of integrated or consolidated licenses for the purposes of achieving coordination. Furthermore, in terms of section 74, a person may apply for exemption from the application of a provision of the NEM:WA, and the Minister may grant, or refuse to grant, such an exemption in terms of section 76. Similarly, section 22(3) of the NWA provides that a responsible authority may dispense with the requirement for a WUL if it is satisfied that the purpose of the NWA will be met by the grant of a licence, permit or other authorisation under any other law; and section 22(4) of the NWA states that, in the interest of cooperative governance, a responsible authority may promote arrangements with other organs of state to combine their respective licence requirements into a single licence requirement.
↑24In terms of PAJA section 1: “administrative action” means “any decision … by an organ of state when exercising a public power or performing a public function in terms of any legislation …. which adversely affects the rights of any person and which has a direct external legal effect
↑25In terms of PAJA section 1: “decision” means ” any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to …. making a declaration, demand or requirement
↑26In terms of PAJA section 1: “empowering provision” means “a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken
↑27Strydom and King (Eds), 2009. Fuggle and Rabie’s Environmental Management in South Africa Second Edition.
↑28Keller, E.A., 1992, in Strydom and King (Eds), 2009. Fuggle and Rabie’s Environmental Management in South Africa.  Second Edition.
↑29Weale, A., 1992.  The New Politics of Pollution, p3
↑30Farmer, A., 1997.  Managing Environmental Pollution. Routledge, London, page 3
↑31Constitution section 24: “Everyone has the right (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, through reasonable legislative and other measures that – (i) Prevent pollution and ecological degradation; (ii) Promote conservation; and (iii) Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development
↑32Pollution” is defined in section 1 of the NWA to mean “the direct or indirect alteration of the physical, chemical or biological properties of a water resource so as to make it  (a)  less fit for any beneficial purpose for which it may reasonably be expected to be used; or (b)  harmful or potentially harmful (aa)  to the welfare, health or safety of human beings;  (bb)  to any aquatic or non-aquatic organisms;  (cc)  to the resource quality; or  (dd)  to property;
↑33de minimis non curat lex: The law does not concern itself with trivial matters
↑34Asante-Duah, D.K., 1993.  Hazardous Waste Risk Assessment. CRC Press/Lewis
↑35Farmer, A., 1997.  Managing Environmental Pollution. Routledge, London
↑36Lusher, J. A. and Ramsden, H.T., 1994.  “Water Pollution” in Fuggle & Rabie, 1994. Environmental Management in South Africa. (1st Edition)
↑37Ragas, A.M.J. and Leuven, R.S.E.W., 1999. Modelling of Water Quality Based Emission Limits for Industrial Discharges in Rivers. Water Science and Technology Volume 39.
↑38DWAF, 2000. Policy and Strategy for Groundwater Quality Management in South Africa
↑39DWS. 2016. Water Quality Management Policies and Strategies for South Africa. Report No. 2.1. Note on the WQM Policy Principles. Water Resource Planning Systems Series, DWS Report No.: 000/00/21715/12. Pretoria, South Africa
↑40GN R. 636, in GG 36784 of 23 August 2013
↑41Activities requiring a WML were originally listed in GN 718, in GG 32368 of 3 July 2009, which has subsequently been repealed, and replaced with GN 921, in GG 37083 of 29 November 2013, which has been amended by GN 332 in GG 37604 of 2 May 2014, to remove the rehabilitation of contaminated land from the list; GN 633 in GG 39020 of 24 July 2015, to add the establishment or reclamation of a residue deposit or stockpile resulting from an activity which require a prospecting right or a mining permit in terms of the Minerals and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) to the list of waste management activities; and GN 242 in GG 40698 of 17 March 2017, to repeal the sorting, etc. of general waste from the list.
↑42UNEP (Editor) (2002): A Directory of Environmentally Sound Technologies for the Integrated Management of Solid, Liquid and Hazardous Waste for Small Island Developing States (SIDS) in the Pacific Region. The Hague: United Nations Environment Programme (UNEP).
↑43DWAF, 2005. Waste Management Series. Minimum Requirements for Waste Disposal by Landfill .  Third Edition
↑44NEM:WA Amendment Act, commencement date 2 June 2014
↑45NEMLAA, section 19, commencement date 2 September 2014
↑46Bosman, C. 2016.  Unintended Consequences of a Turf War: Mining waste under the NEM:WA.  Paper presented at the Annual Conference of the Environmental Law Association of South Africa (“ELA”), held on 30 September 2016 in Sandton
↑47Workshop held on 2017.12.08 by the DEA to discuss issues around the WCMS and suggestions to address it, as well as personal communication on 2017.05.24 and 2017.12.08 with D. Fischer, Chief Director, DEA.
↑48GN R 632, published in GG 39020 of 24 July 2015. Regulations to provide for the planning and management of residue stockpiles or residue deposits resulting from activities which require a prospecting right or mining permit in terms of the MPRDA.
↑49The Regulations do not specify a method for the determination of TC of chemical substances.  It is assumed that this should be conducted by means of crushing and a mineralogical assay for inorganic wastes; followed by a water-based extraction on which macro-chemical analysis; mass-spectrometry for organic components; and inductively coupled plasma atomic emission spectroscopy for metals, are conducted.  The last three methods are very expensive, and most laboratories only use the LC leaching methods, which are much less cumbersome and costly.
↑50The Regulations specify that the type of leaching fluid used in the determination of the LC of the chemical substances in the waste, must be determined based on the content of the waste, as follows: Wastes that contain putrescible matter – 0.1M acetic acid solution with pH 5.0 or pH 2.9, depending on the standard methodology; Wastes disposed with non-putrescible wastes – 0.1M basic sodium tetraborate decahydrate solution of pH 9.2, as well as an acetic acid solution with pH 5.0 or pH 2.9, depending on the standard methodology; or Non-putrescible wastes disposed without any other wastes: reagent water.
↑51SABS, 2011. SANS 241: 2011, South African National Standard: Drinking Water. Part 1: Microbiological, Physical, Aesthetic and Chemical Determinants. SABS, Pretoria. This Standard has since been updated in 2015, and the 2011 Standard is no longer valid, but the Waste Classification Regulation has not been updated to reflect this change
↑52DWAF, 1998. Waste Management Series. Minimum Requirements for the Handling, Classification and Disposal of Hazardous Waste.  Second Edition
↑53SANS 2411:2011, on which the LCT limit values were based, has since been retracted and replaced with SANS 241:2015
↑54Workshop held on 2017.12.08 by the DEA to discuss issues around the WCMS and suggestions to address it.
↑55Chabedi, T. R., Mathoho, G., and Matimolane, M., 2018. Current Regulatory Instruments for Waste Disposal Facilities in South Africa: A Review of the Regulations. Paper presentation prepared for the WISA 2018 Conference, Cape Town, South Africa
↑56Refer to the decision of the Gauteng High Court in Case Number 31629/13, where the Court ruled that a Regulation published in GG 35903 of 23 November 2012 was reviewed and set aside, due to the fact that the decision underpinning the publication of the Regulation was not based on sound and valid scientific principles, that the economic implications of the decision was not considered, and that its provisions was therefore irrational, arbitrary, capricious, and based on irrelevant considerations. (Red Steenbras Case).  Also refer to Bato Star Fishing (Pty) Ltd v Minister of Environment Affairs and Others 2004 (4) SA 490 (CC).
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