Operators of historic waste disposal facilities in South Africa have been called upon to apply for waste management licences (WMLs) for the first time since the National Environmental Management: Waste Act (Nemwa) came into effect 16 years ago, according to a group of Webber Wentzel attorneys.

Forestry, Fisheries and the Environment Minister Willie Aucamp issued the notice on December 10 last year, requiring certain operators to submit applications by December 9, 2027.

The Webber Wentzel attorneys – partners Garyn Rapson and Paula-Ann Novotny, senior associate Cobus Hoon and candidate attorney Lia Wheeler – explained on January 15 that the notice targets operators who run waste disposal facilities established before the start of the Environment Conservation Act (ECA) and were operational when Nemwa came into effect.

It also applies to holders of permits issued under Section 20 of the ECA where the Forestry, Fisheries and the Environment Minister is the licensing authority, as well as operators of listed waste management activities under Schedule 1 of Nemwa that were lawfully conducted under Government Notice No. 91 of February 1, 2002, published under Section 20(5)(b) of the ECA.

According to the Webber Wentzel team, Nemwa replaced the previous permitting system under Section 20 of the ECA, which regulated traditional landfill sites, with a licensing system that covers a broader range of waste management activities.

Nemwa included transitional provisions allowing certain facilities and activities to continue operating until called upon to apply for a WML. The recent notice formally triggers these provisions, bringing legacy waste facilities into the current regulatory framework.

The attorneys pointed out that the notice raises several uncertainties.

Facilities operational in 2009 may no longer be active, and Aucamp’s reference to Section 43 of Nemwa introduces ambiguity over which historic ECA permit holders fall under the WML requirements.

Section 43 specifies that the Forestry, Fisheries and the Environment Minister is the licensing authority only in limited circumstances, including activities involving hazardous waste, cross-provincial or international impacts, or operations undertaken by government departments or statutory bodies.

The Webber Wentzel attorneys indicated that the intention appears to be to regulate all former ECA facilities with permits issued by the Minister at the time, although clarity on this point is required.

The attorneys further explained that operators called upon to apply must submit applications using a prescribed form provided by the Department of Forestry, Fisheries and the Environment.

Each application must include a pollution-impact assessment compiled by an independent specialist, evaluating the environmental degradation caused by the facility and proposing mitigation measures through an environmental management programme.

The application process also requires a 30-day public participation process, during which members of the public may submit comments that must be included alongside the applicant’s responses. The licensing authority is then required to decide on the application within 120 days of receiving all necessary information.

The Webber Wentzel team highlighted that the WML notice does not apply to facilities with expired licences or licences that have been suspended or revoked. While the notice does not explicitly state penalties for non-compliance, Section 81(3) of Nemwa provides that existing ECA permits will automatically lapse if an application is not submitted within the two-year deadline.

The Webber Wentzel attorneys advised that operators of historically authorised waste disposal facilities should carefully assess whether they fall within the scope of the notice to avoid the risk of noncompliance.

They noted that the call to action represented a significant regulatory step in enforcing compliance with the Waste Act for facilities that have operated under transitional arrangements for more than a decade.