Chapter 8: General matters
Part 1: Regulations
69. Regulations by Minister
- The Minister may make regulations regarding -
- the identification and categorisation of waste;
- the manner in which particular waste types must be dealt with and managed;
- the manner in which priority waste must be dealt with and managed;
- requirements for monitoring of compliance with this Act or any licence issued in terms of this Act;
- waste management planning;
- the exercise of the duty of care;
- measures that are required for the environmentally sound management of waste;
- requirements in respect of waste management activities;
- measures that must be taken in respect of the implementation of waste minimisation, including the separation of waste at the point of generation and setting of targets or percentage of products that must be recovered under a re-use, recycling, refundable deposit or take-back programme;
- the control of the import or export of waste;
- the obligation of producers of a specified product or class of product to carry out a life cycle assessment in relation to the product, in such manner or in accordance with such standards or procedures as may be specified;
- the requirements that must be complied with in respect of the design, composition or production of a product or packaging, including requirements in respect of -
- the restriction of the composition, volume or weight of packaging;
- the reduction, re-use, recycling and recovery of packaging; and
- the use of alternate materials that are less harmful to the environment;
- the utilisation of waste by way of recovery, re-use and recycling;
- the reduction of waste by -
- the adoption of certain manufacturing processes; and
- the use of alternative materials or products;
- the financial arrangements of waste minimisation programmes;
- the institutional arrangements for the administration of waste minimisation programmes;
- the control over waste management facilities;
- labelling requirements in respect of waste management;
- the location, planning and design of waste management activities;
- the registration of persons transporting waste;
- the manner in which a site assessment in terms of section 37 must be conducted and the person who may conduct such assessments;
- the contents of a site assessment report contemplated in section 37, including persons who may undertake such site assessments;
- the manner in which an application for a waste management licence must be made, including the persons who may manage such applications;
- requirements in respect of the funding or insuring of a waste management activity;
- the nature, type, time period and format of data and information to be submitted in terms of a waste information system established in terms of this Act;
- the procedure for the institution of appeals against decisions of officials in the performance of their functions in terms of this Act;
- (aa) the dissemination of information to the public;
- (bb) incentives and disincentives to encourage a change in behaviour towards the generation of waste and waste management by all sectors of society;
- (cc) matters that must be regulated by a contract between a municipality and any waste management service provider;
- (dd) any matter that may or must be prescribed in terms of this Act; and
- (ee) any other administrative or procedural matter that it is necessary for the proper administration and implementation of this Act.
- Aregulation under subsection (1) (i), (j), (k), (l), (n) and (r) may only be made after consultation with the Minister of Trade and Industry.
- A regulation under subsection (1)(o) and (x), and a regulation in respect of financial incentives and disincentives made under subsection (1) (bb), may only be made with the concurrence of the Minister of Finance.
- A regulation under subsection (1)(cc) may only be made after consultation with the Minister for Provincial and Local Government.
- A regulation under subsection (1)(u), (v) and (w) may only be made after consultation with the Minister of Water Affairs and Forestry.
- Any regulation which pertains to the treatment of waste by means of incineration must be submitted to the National Assembly 30 days prior to publication.
70. Regulations by MECs
- The MEC with the concurrence of the Minister may make regulations for the province concerned in respect of any matter for which the MEC may or must make regulations in terms of this Act, including any matter referred to in section 69(1)(b) to (h), inclusive, (m), (p), (q), (s) to (w), inclusive, and (y) to (dd), inclusive.
- A regulation in respect to a matter referred to in section 69(1)(cc) may only be made after consultation with the Minister for Provincial and Local Government.
- Aregulation in respect of a matter referred to in terms of section 69(1) (u), (v) and (w) may only be made after consultation with the Minister ofWater Affairs and Forestry.
71. General regulatory powers
- Regulations made under this Act may -
- restrict or prohibit any act, either absolutely or conditionally;
- apply -
- generally to the Republic or a province, or only in a specified areas or category of areas; or
- generally to all persons or only to a specified category of persons;
- differentiate between different -
- areas or category of areas;
- persons or categories of persons; or
- types, classes or categories of waste;
- incorporate by reference any guideline, minimum requirements, code of practice or any national or international standard relating to waste management.
- Regulations made under this Act may provide that any person who contravenes or fails to comply with a provision thereof commits an offence and is liable on conviction to -
- imprisonment for a period not exceeding 15 years;
- an appropriate fine; or
- both a fine and imprisonment.
- (a) Before publishing any regulation under this Act, or any amendment to the regulations, the Minister or MEC, as the case may be, must follow a consultative process in accordance with sections 72 and 73.
(b) Paragraph (a) need not be complied with if the regulations are amended in a non-substantive manner.
Part 2: Consultative process
72. Consultation
- Before exercising a power which, in terms of this Act, must be exercised in accordance with this section and section 73, the Minister or MEC must follow such consultative process as may be appropriate in the circumstances.
- When conducting the consultations contemplated in subsection (1), the Minister must -
- consult all Cabinet members whose areas of responsibility will be affected by the exercise of the powers;
- in accordance with the principles of co-operative governance as set out in Chapter 3 of the Constitution and subject to the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005), consult the MEC responsible for waste management in each province that will be affected by the exercise of the power; and
- conduct a public participation process in accordance with section 73.
- When conducting the consultations contemplated in subsection (1), the MEC must -
- consult all members of the Executive Council whose areas of responsibility will be affected by the exercise of the powers;
- in accordance with the principles of co-operative governance as set out in Chapter 3 of the Constitution and subject to the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005), consult the Minister and all other national organs of state that will be affected by the exercise of the power; and
- conduct a public participation process in accordance with section 73.
73. Public participation
- Before exercising a power that, in terms of this Act, must be exercised in accordance which this section, the Minister or MEC, as the case may be, must give notice of the proposed exercise of the relevant power -
- in the Gazette; and
- in at least one newspaper distributed nationally or, if the exercise of power will only affect a specific area, in at least one newspaper distributed in that area.
- The notice must -
- invite members of the public to submit to the Minister or MEC, as the case may be, within no less than 30 days of publication of the notice in the Gazette, written representations on or objections to the proposed exercise of power; and
- contain sufficient information to enable members of the public to submit representations or objections.
- The Minister or MEC, as the case may be, may, in appropriate circumstances, allow any interested person or community to present oral representations or objections to the Minister or MEC, or a person designated by the Minister or MEC.
- The Minister or MEC, as the case may be, must give due consideration to all representations or objections received or presented before exercising the relevant power.
Part 3: Exemptions and appeals
74. Applications for exemption
- Any person may apply in writing for exemption from the application of a provision of this Act to the Minister or, where the MEC is responsible for administering the provision of the Act from which the person or organ of state requires exemption, to the MEC.
- An application in terms of subsection (1) must be accompanied by -
- an explanation of the reasons for the application; and
- any applicable supporting documents.
75. Consideration of applications for exemption
- The Minister or MEC, as the case may be, may request an applicant contemplated in section 74 to furnish additional information where such information is necessary for the purposes of informing the Minister or MEC's decision.
- If the rights or interests of other parties are likely to be adversely affected by the proposed exemption, the Minister or MEC, as the case may be, must, before deciding the application, request the applicant to -
- bring the application to the attention of relevant organs of state, interested persons and the public by conducting a public participation process indicated by the Minister or MEC; and
- to submit any comments received from the public following such process to the Minister or MEC.
76. Decisions on applications for exemption
- The Minister or the MEC, as the case may be, may -
- grant an exemption from the application of a provision of this Act; or
- refuse to grant such exemption.
- Sections 48 and 49(2) to (6), inclusive, apply with the changes required by the context to the consideration of applications for exemptions.
- If an application is granted, the Minister or MEC must issue a written exemption notice to the applicant stating -
- the name, address and telephone number of the person to whom the exemption is granted;
- the provision of this Act from which exemption is granted;
- the conditions subject to which the exemption is granted, if the exemption is granted subject to conditions; and
- the period for which exemption is granted, if the exemption is granted for a period.
- The Minister or the MEC, as the case may be, may by notice in the Gazette exempt an organ of state from a provision of this Act if -
- the provision, but for the definition of "person" contained in section (1), clearly should not apply to an organ of state;
- the exemption would not defeat the objects of this Act; and
- it is in the public interest to grant the exemption.
77. Review and transfer of exemptions
- The Minister or MEC may -
- from time to time review any exemption granted in terms of section 76; and
- on good grounds suspend or withdraw such exemption or amend the exemption, or any part thereof.
- Before suspending, withdrawing or amending an exemption, the Minister or MEC must give the person to whom the exemption was granted an opportunity to comment, in writing, on the reasons for the suspension, withdrawal or amendment.
- If an exemption has been granted in respect of a waste management activity, or part thereof, and ownership of that waste management activity is transferred, the exemption may, with the permission of the Minister or MEC, be transferred by the holder of the exemption to the new owner of the waste management activity.
- Section 52 applies with the changes required by the context to the transfer of exemptions.
78. Appeals
- An appeal under section 43 of the National Environmental Management Act in respect of a decision made under a power delegated by the Minister or MEC in terms of this Act or another specific environmental management Act where the Minister or MEC is responsible for considering the appeal, may be considered jointly with any other appeal involving a related matter.
- Where the Minister or MEC exercises his or her discretion to consider appeals jointly under subsection (1), the Minister or MEC may indicate the process that must be followed to give effect to that decision.