THE LEGAL CHALLENGE OF IMPLEMENTING SOUND HEALTH CARE RISK WASTE MANAGEMENT IN GAUTENG

Dee Fischer, BArch.

Deputy Director: Integrated Waste Management, Department of Agriculture, Conservation, Environment and Land Affairs, PO Box 8769, Johannesburg, 2000, South Africa, Tel: +27 11 355-1956, Fax +27 11 337-2292; Email:

ABOUT THE SPEAKER

Ms D Fischer has extensive experience in the waste management field, and has been instrumental in improving the health care risk waste (HCRW) management system and the performance of both thermal and non-thermal HCRW treatment facilities in Gauteng. Ms Fischer has also been involved in achieving improved performance in the industrial and hazardous waste management.

ABSTRACT

In order to provide environmental protection all government departments must look to the frameworks and principles, which are provided in the Constitution of the Country, as well as the principles of the National Environmental Act.

Through the Gauteng Department of Agriculture, Conservation, Environment Land Affair’s desire to make an intervention into the management of the health care risk waste steam in the province, and move the management of this waste stream from crisis management to environmentally sound and sustainable management, it became evident that the framework and the guiding principles provided at a national level were not adequate to effectively and speedily achieve the objectives. Decision support tools that could be utilized by the department to manage this and other waste streams were necessary.

1997, Provided a milestone in environmental legislation for the provincial sphere of government with the promulgation of the Environmental Impact Assessment regulations. This paper will explore the existing legislation that was in place in 1997, as well as the policies, guidelines and new regulations that were developed to achieve the objectives of sustainable management of Health care risk waste in the province, which was the goal, after 1997. The gaps and challenges will be explored, and the development of provincial decision support tools as well as provincial legislation to supplement the national framework will be discussed.

THE LEGAL CHALLENGE OF IMPLEMENTING SOUND HEALTH CARE RISK WASTE MANAGEMENT IN GAUTENG

INTRODUCTION

Since 1997 through the promulgation of the Environmental Impact Assessment regulations R1182, R1183 and R1184 promulgated under Section 21, 22, 26 & 28A of the Environmental Conservation Act (Act 73 of 1989) (ECA) the Gauteng Department of Agriculture, Conservation, Environment and Land Affairs has been concerned with the management of Health Care Risk Waste. These regulations required that authorisation in terms of Section 22 of the ECA be issued prior to operating a processes listed in terms of the Second Schedule of the Air Pollution Prevention Act (Act 45 of 1965), or the permitting of any waste handling facility in terms of Section 20 of the ECA. The treatment of health care risk waste through thermal or non-thermal technologies falls in both or one of the above categories, and as such, these activities authorisation from the provincial department of Agriculture, Conservation, Environment and Land Affairs (DACEL), to whom the delegation for authorisations has been given in terms of R1184.

Soon after being delegated this responsibility the Department undertook some preliminary investigations to determine what standards applied to the operation of these thermal and non-thermal treatment plants for HCRW, and what systems were in place to manage the waste steam. The findings of this initial information gathering exercise were startling, and a few of the main findings of this exercise are summarised below.

  • There was no literature on the amount of waste that was being generated in the province or the treatment capacity to deal with the waste.
  • There were a large number of small capacity incinerators operating in the province, of which the majority were being operated by provincial hospitals many without the necessary registration certificates.
  • There were three commercially operating facilities, which had been issued with temporary registration certificates.
  • It appeared that the existing treatment capacity in Gauteng could not meet the HCRW treatment demands.
  • A set of guidelines was published in 1994 by the Department of Environmental Affairs and Tourism, which set operating requirements and requirements with respect to the allowable concentrations of emissions to the atmosphere for processes which could produce noxious or offensive gasses. Compliance to these guidelines had been set for 8 years from that time i.e. between 2002 – 2003, however the 1998 review indicated that no attempt had been made by any of the operators to meet the emission performance requirements, and new machines were being proposed in 1998 which would not be able to meet the environmental requirements of these guidelines.
  • Although HCRW treatment facilities were required to have Section 20 permits in terms of ECA, none of the facilities operating at this time were permitted in terms of this requirement. The procedures, which governed the Section 20 permitting process i.e. the Minimum Requirements for disposal of waste to landfill, made no reference to the permitting of HCRW treatment facilities, although there was a reference to the disposal of incinerator residues at landfill.

When considering the situation with respect to the management of this waste steam it became evident that there had been some uncertainly as to which department and at which level of government the health care risk waste steam is to be managed. This may in part be the reason for the past poor management of this waste steam. The Department therefore reviewed the most prominent pieces of legislation determine the responsibilities of the provincial Environmental department with respect to the management of this waste steam. The following is a brief discussion on the findings.

INSTITUTIONAL ARRANGEMENTS, POLICIES, PLANS AND LEGISLATION, WHICH INFLUENCE HCRW MANAGEMENT:

Institutional arrangements

In order to give effect to the Bill of Rights contained in Chapter 2 Section 24 of the Constitution the following functions are identified:

Schedule 4 (Part A) of the Constitution identifies Environment and pollution control as areas of concurrent national and provincial legislative competencies, while Schedule 5 identifies provincial planning as an exclusive provincial legislative function.

Schedule 4 (Part B) of the Constitution identifies cleansing, refuse removal and solid waste disposal as local government matters with provinces having a role to monitor and support local government in the province and promote the development of local government capacity to enable local governments to perform their functions, as well as having the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5 (Section 155 (6) (a) and (7)).

In broad terms therefore, constitutionally the responsibility to implement Health Care Risk Waste Management treatment and disposal systems is the function of local government, with support, planning and legislation being provided for by provincial government, and national government providing the framework for and ensuring that a sustainable management system is in place that will give effect to the Constitution.

Policies, plans and Guidelines

The Integrated Pollution & Waste Management policy, which is the vehicle for the development of waste policy, provides further clarity with respect to the institutional arrangement for managing the HCRW stream.

  • Among the short term deliverables cited for Goal 1 is included the revision of air emission standards for waste incineration facilities
  • The deliverables of Goal 2 include the development of classification system for all waste treatment facilities including health care risk waste treatment facilities, to develop revised air emission standards for waste incineration facilities. To complete a plan for a system of medical waste treatment plants. Thereafter additional medical waste treatment facilities will be established and operated in accordance with the plan.
  • With respect to Roles of Government, the IP&WM indicates that the Department of Health will set regulations and guidelines for all medical waste and treatment facilities, in consultation with DEAT, and regulates the medical industry within the context of environmental and health legislation.
  • In the context of the provincial environmental department the IP&WM policy identifies that provinces will assist DEAT in planning for a system of medical waste treatment facilities and investigating the feasibility of centralised (regional) waste treatment plants.
  • The IP&WM policy process, was further developed into the National Waste Management Strategy (NWMS), which was an initiative jointly undertaken by DEAT and DWAF and was completed in October 1999. The development process comprised of two parts; the first part being the strategy development and the second part being the development of various action plans related to different aspects of a holistic approach to managing the waste stream.

The National Waste Management strategy builds on the IP&WM policy and provides plans short, medium and long-term implementation plans to ensure that the objectives and the goals of the IP&WM are achieved. The NWMS identified and addressed several key issues, which will affect HCW Management. The relevant issues are listed as follows:

  • To bring about a paradigm shift from end-of-pipe control to waste prevention and minimization;
  • To ensure that public health and occupational health issues receive due consideration in all waste management practices;
  • To initiate a system of integrated waste management through the implementation of institutional arrangements and funding mechanisms;
  • To ensure integration of waste management initiatives with other government initiatives, programs and administrative systems;
  • To integrate waste management with the over charging process of environmental planning, management and protection.

The NWMS strategy proposed the following tasks and time frames with respect to HCW Management for both the national and provincial level of government:

  • DEAT is to develop guidelines for the safe management of HCW by 2001;
  • DEAT is to review and revise existing air emission standards on thermal treatment facilities to ensure the protection of public health and the environment;
  • The initial objective is that by 2002 all thermal treatment facilities will be upgraded to comply with these standards, or will alternatively be decommissioned;
  • The planning of well-functioning HCRW treatment plants will be complete by the year 2002
  • HCRW treatment facilities in rural areas will be in place by 2006;
  • Each province is to assess its needs for HCRW treatment in both urban and rural areas;
  • Each province is to draw up plans for the development of appropriate facilities in identified areas.

The NWMS process was recently followed by the development of a program for the implementation thereof, with five starter documents being produced during March 2000. These documents have prepared the framework for the development of implementation plans. One starter document has been specifically addressing HCW Management issues and is entitled “Program for the implementation of the NWMS Phase One: Management of Health Care Waste”. The aim of the document was to undertake a brief study into the current status of Health Care Waste Management, approaches followed internationally and the particular needs of South Africa.

The abovementioned document made various recommendations, some of which are listed below:

  • Integrated guidelines that cover the full spectrum of Health Care Waste should be developed;
  • Provincial governments need to undertake surveys to determine the quantities, types and locations of all types of Health Care Waste generated within their areas of jurisdiction as well as the status and capacity of the available treatment and disposal facilities;
  • Training and awareness raising programs, based on the aforesaid guidelines, must be developed, and implemented within all Health Care facilities;
  • Sufficient funding should be made available in order to undertake the required studies to implement the training and awareness programs.

These national government policy processors have set the foundations on which provinces can build in order to achieve the goal of protecting the environmental rights of all South Africans through the implementation of appropriate waste management systems.

Provincial policies, regulations and guidelines

In addition to the framework and guidance provided by national DEAT, there are certain regulatory opportunities available to provincial government to assist when providing for appropriate waste management systems. These are as follows:

The Environmental Impact Assessment regulations - Information on these regulations has been provided in the introduction.

Section 24(b) (c) (f) (g) (h) and (i) of the Environmental Conservation Act – which allows provinces to promulgate regulations regarding waste management

FINDINGS:

It was clear from the in-house legal review undertaken by the Department that as an Environmental Department, DACEL had a role to play in attempting to resolve the crisis situation around the management of HCRW being experienced in the province. Notwithstanding the number of legislative tools available to assist in managing the waste team, the process of improving the system to reach the ultimate goal to establish a management system which is environmentally sustainable, financially viable, occupationally healthy and safe, institutionally feasible and operationally practical, from generation to final disposal has been very difficult and protracted. Work first began in 1997, and only on the 22nd August 2003 will the regulations, which will govern this waste team in the province, be gazetted for public comment. The development process will be outlined below and the significant milestones will be identified and discussed.

EIA Reviews

The process started with the vigorous reviewing of EIA applications. It was decided early that in order to “level the playing fields” between the operational and environmental performance expected from technologies utilised by the private sector and the public sector to utilise a set technology performance guideline. As indicated, DEAT had developed a set of emission guidelines, which included acceptable emission from HCRW incinerators, which were identified, as Class 2B incinerators. It was decided to utilize these guidelines when reviewing EIA applications. There were major resistance from both the private and public sector from among others for the following reasons:

  • The costs of the technology that would need to be purchased to meet these guidelines far exceeded the costs of the technology utilised previously.
  • The private sector was not sure that all treatment facilities (i.e. pubic facilities, and facilities presently operating) would be required to make the same investment. This could result in a loss of market competitiveness, as the generator was not required to utilize the best available technology, and “the duty of care” of the generator did not receive attention
  • The public hospitals had embarked on a program to upgrade all the incinerators in provincial hospitals and to roll out two small scale, manually fed incinerators at all provincial institutions. These incinerators did not meet the requirements of the guidelines without installing air pollution control devices, for which the machine had not been designed.
  • There was uncertainty if the large investment in technology could be sustained by the tonnage of waste being produced in the province, as there were no commercially available generation figures.
  • The technology improvement did not satisfy NGO’s who wanted to see the waste stream being reduced at source.
  • Dioxin emission measurements could not be undertaken in the country, and it was argued that the costs attached to dioxin emission monitoring was unnecessary, although from an I&AP point of view dioxin measurements were an absolute necessity to determine any possible risk to human health.
  • Proponents were not confident that even if they did install internationally accepted technology if a positive ROD would be issued, as the poor performance previously demonstrated by incinerators had created a negative sentiment to incineration in the country. In short proponents were not sure of governments “unwritten” policy on incineration.
  • Treatment facilities could be set up around the boarders of Gauteng, and the waste could merely be transported from the province to treatment plants that did not meet the Gauteng emission requirement.

Status Quo Study

While understanding the concerns raised, the Department continued to insist on technologies meeting the DEAT emission guidelines. In order to address some of the concerns however, and to gain a better understanding of the waste team a “status quo” study was commissioned in 2000. This was the first study in Gauteng or South Africa where HCRW generated from a sample of generators was weighed to determine a generation figure for the country. All incinerators in the province were visited, to determine the disposal capacity and the ability of the technology to beupgraded to meet the DEAT emission guidelines. A brief summary of the findings is listed below:

  • Gauteng produced approximately 1200 tons of HCRW per month (public & private)
  • Estimated cost of treatment R60 million per year
  • This waste was treated at 58 incinerators of which 25 were registered with DEAT
  • The small capacity incinerators could not meet the current DEAT air emission guidelines
  • Approximately 600 major generators contributing 89% of the waste stream and 9700minor generators contributing 11% of the waste stream
  • No dioxin measurements had been taken at any incinerator
Gauteng Sustainable HCRW project

In 2001 DACEL in partnership with the Gauteng Department of Health and with the support of DEAT was fortunate to implement a national HCRW pilot project on HCRW through the funding of DANCED (DANIDA).

One of the first outputs of this project (within the first 8 months) was a Health care risk waste policy for Gauteng. This policy was needed to formulate and communicate the requirements with respect to HCRW management in the province. The policy was intended to provide guidance for both the HCW generators and the HCW service providers when planning investments, preparing for increased performance standards and future market conditions, as well as developing suitable treatment facilities and identifying requirements with respect to the system for HCRW management and the service delivery standards to be achieved. The Gauteng HCRW policy was indorsed by the provincial Cabinet in November 2001, and covered among others the following aspects: