New Waste Act finally in force

By Twaambo Muleza

After approximately ten years of debate and a long drafting process the National Environmental Management: Waste Act 59 of 2008 (“Waste Act”) commenced finally on 1 July 2009.

Most sections will commence from that date but the very controversial contaminated land provisions will not commence at this time. It is not known when these will commence.

When the Waste Act commenced it repealed section 20 of the Environment Conservation Act 73 of 1989 (“ECA”) which is concerned with permits for the operation of waste disposal sites.

The Waste Act provides for certain transitional provisions regarding such permits.

In summary, the Waste Act provides that:

the holder of a permit issued in terms of section 20 of the ECA must apply for a waste management licence under the Waste Act when requested to do so by the licensing authority, in writing and within the period specified by the authority;
a permit issued in terms of section 20 of the ECA remains valid until a waste management licence is issued in terms of the Waste Act to the same person in respect of the same waste management activity, or if the holder of the permit did not apply for a waste management licence within the stipulated time period, or if the licensing authority refuses an application for a waste management licence. The provisions of the Waste Act will apply during the period for which a permit issued in terms of section 20 of the ECA remains valid in respect of the holder of such permit, as if such permit was a waste management licence under the Waste Act; and
an application for a permit in terms of section 20 of the ECA that is not decided when the Waste Act commences will be considered in terms of the Waste Act.

The new Act regulates certain waste management activities that were not previously regulated. This is because a waste management license is now required to conduct all waste management activities listed in Schedule 1. Unfortunately the transitional period for these activities is not clear. The Act provides for two of these:

a person who was operating a waste management facility established before the ECA commenced that is operational on the commencement date of the Waste Act may continue to operate the facility until the Minister calls on the person to apply for a waste management licence under the Waste Act, by notice in the Gazette;
a person who conducts a waste management activity listed in Schedule 1 on the commencement date of the Waste Act, and who immediately before the date lawfully conducted that waste management activity under Government Notice 91 of 1 February 2002 (Directions with regard to the Control and Management of General Communal Small Waste Disposal Sites) may continue with the activity until the Minister directs the person to apply for a waste management licence by notice in the Government Gazette.

For other activities we suggest application is made as soon as possible.

Contaminated Land Provisions

Although the contaminated land provisions have not yet commenced it is worth remembering that these will apply even if the contamination occurred before the date of commencement of the Act.

This means that the current owner of contaminated land will be liable for any measure he or she is ordered to undertake by the Minister or a Member even if the contamination occurred in the past. Where parties that contributed to the contamination cannot be traced, the current owner may be the only person held responsible for risk assessment and remediation (if required).

It is not clear from the Waste Act how the Minister or Member will determine who is liable for undertaking a remediation order. The Waste Act does not set out the manner in which such a determination should be made. The person responsible for such remediation may be the previous polluter, the current landowner or the state. There will be significant disruption to activities on the land, especially if the responsible person is a previous owner that has no interest in carrying out the remediation expeditiously. The Waste Act is unfortunately silent on how such conflicts will be dealt with.

Section 38(4) of the Waste Act provides that unless otherwise directed, a remediation order or an order to take measures must be complied with at the cost of the person to which it is issued.

The Waste Act does not explain what will happen if the person to which the order is issued is unable to pay for remediation or related measures.

Section 40(1) of the Waste Act prohibits the transfer of contaminated land without first informing the person to which that land is to be transferred that it is contaminated. Where the land in question is the subject of a remediation order, the Act prohibits its transfer without notifying the Minister or Member. The Minister or Member may impose conditions before the transfer can proceed.

These restrictions will delay any transfer of land.

When the contaminated land provisions in the Waste Act become law they will have a significant impact on the due diligence investigation required before a sale of business is undertaken. For example, it will be important to establish whether the related land is contaminated. The importance of this will no longer be only for the determination of price, but also for liability reasons as the purchaser (on becoming an owner) may be liable for assessment and remediation costs even if contamination occurred before the acquisition of ownership.

Where a sale of business transaction is dependent on the transfer of the land, the transaction will be delayed. This will especially be the case where the land is a remediation site, because the Minister or Member must be informed of the pending transfer and must then determine the conditions under which the transfer may be permitted.

Brought to you by the Environment, Natural Resources and Climate Change Practice Area.

For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email c.tucker@bowman.co.za.

 
www.bowman.co.za