E-waste warning: is it the electrical contractor’s responsibility?

The widely accepted international definition of e-waste is “waste that is generated from anything that runs on electricity” and includes waste generated from both electronic and electrical equipment, devices and materials.

South Africa enacted the National Environmental Management: Waste Act 59 of 2008 (NEMWA) to regulate waste management in the country, and to protect the health of people and the environment by providing reasonable measures for the prevention of pollution and ecological degradation.

Section 1 of NEMWA defines ‘waste’ as “… 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 wastes as defined in Schedule 3 to the Act …”

NEMWA prescribes different categories of waste and regulates how each category of waste should be disposed of. NEMWA categorises e-waste both as ‘general waste’ and ‘hazardous waste’ (GW18 and HW18), therefore, e-waste cannot simply be disposed of with building and demolition rubble or discarded with other types of general waste, which ends-up in a landfill.

In terms of the NEMWA, ‘general waste’ means waste that does not pose an immediate hazard or threat to the health of people or the environment and includes non-hazardous substances, materials or objects discarded during business, inert and domestic use, which includes building and demolition waste.

NEMWA defines ‘general’ building and demolition waste (which is distinguished from construction waste), as waste produced and displaced during the construction, alteration, repair or demolition of any structure including rubble, earth, rock and wood, etc, excluding hazardous waste.

General building and demolition waste excludes hazardous waste. Hazardous waste is any waste that contains organic or inorganic elements or compounds that may, owing to the inherent physical, chemical or toxicological characteristics of that waste, have a detrimental impact on health and the environment and includes hazardous substances, materials or objects within business waste, residue deposits and residue stockpile. Hazardous waste includes certain construction waste such as discarded metals (including their alloys), gypsum-based construction material, insulation materials, asbestos-containing construction materials, etc.

E-waste primarily forms part of the broader category of hazardous waste, along with batteries, and chemical waste. E-waste will only fall into the category of general waste if all the hazardous components have been removed so that it does not pose any immediate threat to human health or the environment. Although a large portion of the materials in e-waste are non-hazardous, the hazardous materials must be extracted first before the non-hazardous components can be disposed of. Therefore, e-waste must be disposed of in a specified manner and done so responsibly because a large part of e-waste processing activities will involve the removal of hazardous materials.

• Why is e-waste of a concern?

E-waste is of concern largely due to the toxicity of some of the substances if processed improperly. The toxicity is due, in part, to the dangerous substances contained within the e-waste, namely, lead, mercury, cadmium and several other toxic chemical elements. It presents difficulties for recycling due to the complexity of each item and the lack of viable recycling systems. For example, many of the plastics used in electronic equipment contain flame retardants. These are generally halogens added to the plastic resin, making the plastics difficult to recycle.

• Polluter pays principle

In terms of the ‘polluter must pay’ principle any person involved in any pollution activity, which will include incorrectly discarding or disposing of e-waste, will be held responsible for the cost of preventing or dealing with the pollution it caused.

It is an international law principle that aims to hold polluters accountable and economically liable for environmental damage caused by pollution. This principle has been adopted out of National Legislation, sections 2 and 28 of the National Environmental Management Act 107 of 1998 (NEMA).

Section 28 of NEMA imposes a duty on every person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, if the harm to the environment is authorised by law or cannot be avoided or stopped, to reduce and rectify the pollution or degradation. This means that each and every person who is a generator of e-waste, including an electrical contractor, is subject to this duty of care when disposing of e-waste.

If a person fails to take these reasonable measures as specified by section 28 of NEMA, section 28(12) allows a person affected thereby to apply to a court for an order directing the Director-General of the Department of Environmental Affairs or the head of the Provincial Environmental Department to take the necessary steps to ensure that the ‘polluter pays’ and that the environment is remediated.

• How should e-waste be disposed of?

There are a number of direct stakeholders of e-waste, which include the manufacturers of the electronic and electrical products, generators of e-waste (which will include the electrical contractor), collectors, dismantlers and processors of e-waste.

The collectors, dismantlers and processors and e-waste recyclers need to apply for waste management license(s) for various activities they perform such as storage, dismantling, extracting, recycling, recovery, treatment and disposal of e-waste. This is because these processes, in terms of section 24 of NEMA, require environmental authorisation (EA) from the Minister. Accordingly, some of the licenses require environmental impact assessments (EIAs) to be conducted by external consultants depending on activity and volumes handled.

• What is the electrical contractor's obligation with regards to e-waste?

Due to the duty of care imposed on all the stakeholders of e-waste, which includes the electrical contractor as the generators of e-waste, and considering the polluter pays principle, the electrical contractor has a duty to ensure all e-waste generated on and off-site is properly disposed of.

This means that the electrical contractor cannot simply rely on the principal contractor to properly dispose of the e-waste and must ensure that the environmental management plan (EMP) in the agreement takes into account the correct procedure for e-waste disposal to manage e-waste effectively.

The electrical contractor is ultimately responsible to ensure that e-waste is kept separate from other waste, it is then collected, dismantled and processed by authorised and licenced e-waste recyclers and/or disposed of.

The e-Waste Association of South Africa (eWASA) was established to manage the establishment of a sustainable environmentally sound e-waste management system for the country. Together with eWASA, several e-waste collectors are making the responsible treatment and disposal of our e-waste easier.

• Conclusion

In the current digital era, where e-waste is growing at a faster rate than any other form of waste, it is up to every stakeholder of e-waste, including the manufacturers, generators, collectors, dismantlers and processors of e-waste, to manage the disposal and recycling of e-waste effectively. While it is easy to simply discard e-waste with all other waste on site, if not properly disposed of, the toxic and hazardous substances in e-waste have extremely harmful effects on both human health and the environment.

Electrical contractors have a duty of care imposed on them by legislation to ensure that all the e-waste generated on- and off-site is properly disposed of. Polluters can be held criminally liable for the contravention of environmental legislation. Therefore, it is up to the electrical contractors to check that the EMP properly manages e-waste and that the e-waste is kept separate from other waste and that it is then collected, dismantled and processed by authorised and licenced e-waste recyclers and/or disposed of.

©ECA(SA) 2021

Published in the September-October 2021 issue of SA Electrical Contractor

Article used with kind permission of the Electrical Contractors’ Association (SA)

About the Author

Roelf Nel specialises in construction and engineering law and acts for all role players in the construction industry including contractors, subcontractors, employers, consultants, and suppliers in all stages of construction projects from feasibility to close out. He is a RICS-accredited civil commercial mediator and serves on the RICS President’s Panel of Mediators and on the South African Institute of Civil Engineers (SAICE) President’s Panel of Mediators; he is a member of the Chartered Institute of Arbitrators (MCI Arb). Roelf regularly presents CPD accredited workshops for the Pretoria, Gauteng, Free State, KwaZulu-Natal, Limpopo and Cape Institutes for Architecture, the Architects Association of Botswana, Master Builders South Africa North (MBSA), the Electrical Contractors’ Association and the Royal Institute of Chartered Surveyors (RICS) on the JBCC, GCC, FIDIC and NEC suite of contracts. Roelf is available to present inhouse training to companies and project teams.

More info: 087 354 3704

Email: roelf@rninc.co.za

Website: www.rninc.co.za