The Public Health Bill, 1999

PART XII: CONTROL OF HAZARDOUS SUBSTANCES, RADIOACTIVE AND TOXIC WASTES

Control of hazardous substances, radioactive and toxic wastes

116. (1) In this Part, unless the context otherwise requires -

"hazardous substances" means,

(a) any substance or mixture of substances, which may endanger the health of a human being or domestic or wild animal, bird or fish by reason of its toxic, corrosive, irritant, sensitising or inflammable nature; or

(b) any radio-active substances; or

(c) any article or any component part or accessory which is intended for use in or in connection with an article which when operated, causes it, or produces any electronic radiation, to be a hazardous article but does not include an essential drug or drugs;

"hazardous article" means any thing the Minister or other law, may declare to be a hazardous article; and

"radio-active substance" means any substance which produces ionizing radiation as a consequence of any spontaneous nuclear process.

(2) The Minister, alone or on the advice of an established body, may declare any substance to be or not to be a hazardous substance for purposes of Act.

Establishment of the Hazardous Substances Control Authority

117. (1) The Minister may, for the purposes of this Part, establish by notice published in the Gazette, a body to be known as the Hazardous Substances Control Authority and its members shall be appointed by the Ministers in consultation with other ministries concerned with this Part.

(2) The members of the Hazardous Substances Control Authority (hereinafter referred to as the Authority) shall include -

(a) a Chairman who shall be the Deputy Director of Health Services;

(b) an officer from the ministry responsible for the control and management of hazardous substances;

(c) an officer from the Ministry responsible for Agriculture;

(d) an officer responsible for occupational safety and health;

(e) an officer from the Ministry responsible for Industry or Commerce;

(f) an officer from the Ministry or body responsible for the Environment;

(g) an officer from the office of the Attorney-General;

(h) an officer from the Ministry or body responsible for water for consumption; and

(i) one person who is an expert on hazardous substances and chemicals; and

(j) such other persons the Minister may appoint but not exceeding three.

(3) The Minister shall designate one of the members of the Authority to be vice or Deputy Chairman of the Authority who shall exercise the functions and powers of the Chairman whenever the Chairman is unable to act.

(4) The Minister shall designate one of the members of the Authority to be Secretary and another to be Assistant Secretary who shall act whenever the Secretary is unable to act. (5) The Chairman shall preside over the meetings of the Authority which shall be convened by the Secretary whenever is requested to do so by a written letter by not less than three members or by order of the Minister.

(6) The Authority shall regulate its rules of procedure including the number of meetings, which shall not be less than four in one calender year, voting and the quorum.

Functions of the Authority

118. (1) The principal functions of the Authority shall be -

(a) to advise the Minister on all matters pertaining to procurement, storage, use, prohibition, disposal and destruction of hazardous substances;

(b) to set guidelines on the handling and use of hazardous substances;

(c) to set guidelines on the protection of employees who handle hazardous substances including radioactive substances or articles at the work place;

(d) to set guidelines on the protection of persons in general including the environment, against the hazardous substances and radio-active substances.

(e) to seek internal or external expertise on general management of hazardous substances, radio-active and toxic waste;

(f) to advise and give guidelines on radio-active substances, toxic waste including their management and disposal;

(g) to do other duties the Minister or Government may require the Authority to do provided they are lawful.

(2) The Minister may make regulations for the purposes of this section which shall be published in the Gazette, including the establishment of special committees for sophisticated and complex issues.

Conditions of office of members

119. (1) The Minister may stipulate the terms and conditions of engagement of the members of the authority in the letters of, or at the time of, appointment.

(2) The Minister in consultation with the Minister responsible for Finance may pay such allowances and, where appropriate, salaries as may be determined.

(3) The Minister shall have the right to remove any member so appointed and no member shall be permitted to remain a member, if that member -

(a) is convicted of rape, incest, sodomy or any sexual offence;

(b) is convicted of theft or dishonesty and sentenced to imprisonment for a period not less than six months;

(c) is mentally or physically incapable of efficiently carrying out the duties imposed by section 118;

(d) is or has been tried by a court for the offence of bribery relating to the duties imposed by this Act; or

(e) resigns in writing to the Chairman or Minister.

Inspectors and environmental health officers

120. (1) Subject to the Civil Service Order, 1963 the Minister may appoint or designate -

(a) persons to be inspectors as the Minister may consider necessary for the proper enforcement for this Part or Act; and

(b) chemical analysts as the Minister may consider necessary for the purposes of testing, examination or analysis of hazardous substances in terms of this Act or other Act.

(2) For the purposes of subsection (1), in the case of a person employed in a department or Ministry for which the Minister is not responsible, the Minister shall first consult such other Minister or person as is responsible for that department or Ministry.

(3) An environmental health officer may be appointed as an inspector under this Part.

(4) A person appointed or designated as an inspector under this section shall be issued a certificate or other document, certifying that the person is appointed or designated an inspector, by the Minister or such authorised officer.

(5) An inspector shall, on demand by any person affected by the exercise or performance by the inspector of any power or function under this Act, exhibit the certificate or document issued in terms of subsection (4).

Powers of inspectors and environmental health officers

121. (1) Subject to subsection (2) an inspector or an environmental health officer or such other authorised officer may at all reasonable times in the circumstances -

(a) enter upon and search any premises, place, vehicle, vessel or aircraft at which there is, or is on reasonable grounds suspected to be, any hazardous substance, hazardous article or radio-active substance;

(b) inspect any substance or mixture of substances or article or radio active substances or article which is, or on reasonable grounds, suspected to be, a hazardous substance or hazardous article or radio-active substance, or any book, record or document found in or upon such premises, place, vehicle, vessel or aircraft;

(c) seize any substance or mixture of substances or article or any book, record or document so found in respect of which any provision of this Act appears to have been contravened, or which appears to be helpful or essential to ascertaining whether or not a provision of this Act is or is about to be contravened;

(d) by notice in writing to the person in control thereof prohibit the sale or removal of, or any other dealing whatsoever in connection with, such substance or mixture of substances or article in respect of which any provision of this Act appears to have been or about to be contravened;

(e) take so many samples of any such substance or mixture of substances as the inspector or officer considers necessary for the purpose of testing, examination or analysis in terms of this Act or other related legislation; and

(f) carry out any investigation, test or examination the inspector or officer considers necessary for the purposes of this Part or Act in respect of any substance or article which is or which the inspector or officer believes to be a hazardous substance, hazardous article or radio-active substance.

(2) An inspector, environmental health officer or such other authorised officer may not enter upon or search any dwelling house unless the inspector, environmental officer or such other authorised officer believes on reasonable suspicion or grounds that evidence relating to a contravention of this Part or Act or other related Act is to be found therein.

(3) No person shall contravene or fail to comply with a notice of prohibition issued in terms of paragraph (d) of this section.

(4) An inspector, environmental health officer or such other authorised officer may return anything seized in terms of this section or by notice in writing to the appropriate person withdraw a notice of prohibition issued in terms of paragraph (d) of this section.

(5) If after twenty-four months the sample taken under this section is not returned or no court proceedings have been instituted by the Government against the owner or person who was in charge of the substance, such person may claim from the Minister the actual cost at the time of confiscation, and nothing more of the sample taken.

(6) For purposes of the Limitation of Legal Proceedings Against Government Act, 1973 the cause giving rise to the action shall be deemed to have risen at the expiry of the twenty-four months mentioned in subsection (5).

Analysis of samples

122. (1) A sample taken in terms of section 130 shall be taken by the inspector, environmental officer or such other authorised officer, and be submitted without delay, to a chemical analyst in a manner that may be prescribed by the Minister or by a related legislation for examination or analysis.

(2) The chemical analyst to whom a sample has been given or submitted in terms of this Act or such other related legislation shall, with all convenient speed, test, examine or analyse the sample and the result of the test, examination or analysis shall be stated in a certificate or document which may be prescribed by the Minister or such related legislation.

(3) On receipt of the certificate or document mentioned in subsection (2) the Minister or the Director of Health Services or the Authority shall take the necessary action, including the prosecution of any person suspected to have contravened any provision of this Act.

Inspection and licensing of premises dealing with hazardous substances

123. (1) No premises handling hazardous substances, mixture of such substances or radio-active substances shall be licensed or permitted to operate unless such premises or place have been inspected by the inspector or environmental officer or such other authorised officer and that the inspector, the environmental health officer or such other authorised officer has issued a certificate certifying that the premises or place does meet minimum health requirements or standards for that purpose as trade premises or place.

(2) A certificate or permit issued under this Part shall be valid for a period not exceeding twelve months and may be renewed subject to inspection and approval in terms of this Act.

Other offences

124. Any person who -

(a) obstructs or hinders an inspector, environmental health officer or such other authorised officer in the exercise of the powers or carrying the duties conferred by this Act;

(b) contravenes any provision of this Part;

(c) with fraudulent intent, tempers with any sample or article taken in terms of this Act;

(d) makes a false or misleading statement in connection with any hazardous substance, hazardous article or radio-active substance -

(i) in any statement to or before the inspector, environmental health officer, analyst, such other authorised person or the Authority; or

(ii) in the course of the sale thereof; or

(e) sells any hazardous substances or hazardous article upon which or upon or within the container of which a false or misleading statement in connection with the contents appears;

(f) for the purposes of business or trade, misuses or misrepresents any report or certificate made or issued by an inspector, environmental health officer or such other authorised officer or the analyst under this Act;

(g) gives false information to a supplier or presents any forged document in order to acquire a hazardous substance or hazardous article or radio-active substance; or

(h) does any thing contrary to the spirit, objectives or purposes of this Part or Act, commits an offence, and shall be liable, on conviction, to a fine not exceeding fifty thousand Emalangeni, which fine may be amended by the Minister by notice published in the Gazette, or to imprisonment for a period not exceeding twenty-four months.

Restricted use and protection of persons handling radio-active substances or materials

125. (1) There shall be a registrar who shall keep a register of hospitals, institutions, premises, mining and industrial premises and any place using, keeping, storing or handling radio-active substances or materials or hazardous substances or toxic wastes.

(2) Every person who handles radio-active material or substances or hazardous substances shall be medically examined before employment and periodically after engagement at the expense of the employer.

(3) The person mentioned in subsection (2) shall be provided with suitable protective clothing, radio-active monitoring equipment and shall be registered with the registrar.

(4) The inspector, environmental health officer or such other authorised officer shall regularly monitor such premises, workplace and articles for maximum permissible doses or levels of radiation and adequate protective measures for persons in the proximity or such surrounding places.

(5) Any person wishing to transport radio-active substance or material or toxic waste within or in transit the country shall apply for a permit from the Minister and the Minister shall consult with the Authority and any other person the Minister believes is concerned with such issue.

(6) The application and the permit shall provide information on the type and quantity of the radio-active substance or material or toxic waste, the route and type of vehicle to be used, destination and approximate time of departure and arrival at the stated destination.

(7) On receipt of the application, the Minister together with the Authority and any other person the Minister may permit, shall determine and decide on the application.

(8) The applicant shall comply with the conditions or terms of the permit and failure, is an offence.

(9) In case of an accident or spillage of the radio-active substance or material or toxic waste, the person in control or in charge shall immediately report such accident, if its an accident, occurrence or spillage to an inspector, environmental health officer or some other authorised officer, failure of which, to the Minister.

(10) Upon receipt of such report, such officer or the Minister shall immediately arrange or cause to be arranged for the remedial steps or actions to be followed including , the removal, the safe keeping or safe disposal, investigation, prosecution, as the case may be, of the radio-active substance or the material or toxic waste or the persons involved.

(11) The Minister or such authorised persons shall ensure that the trade, storage, use and transportation of dangerous chemicals and pesticides is restricted, managed and monitored by whatever means including the issuance of directives, notices and regulations.

Regulations

126. (1) The Minister may make orders, notices and regulations for the purposes of this Part, published in the Gazette.

(2) Without prejudice to subsection (1) the Minister may make orders, notices and regulations, published in the Gazette, on the following matters -

(a) the manufacture of permitted dangerous chemicals, pesticides and fertilizers, in consultation with other Ministers concerned with such issues, failure to consult shall not invalidate such legislation;

(b) importation, transportation, storage, use, monitoring of radio-active substances and other materials;

(c) classification of hazardous substances and other materials;

(d) application, storage and disposal of hazardous substances including their containers;

(e) prohibit and regulate the importation and use of hazardous substances; and

(f) prohibit and regulate anything which needs to be prohibited and regulated.

(3) Any regulations, notices or orders made under this Part may prescribe offences and penalties, including amending any fines prescribed under this Part.

Offences and penalties

127. Any person who contravenes any provision of this Part or subsidiary legislation made under this Part commits an offence and shall be liable, on conviction, where punishment is not specified, to a fine not exceeding fifty thousand Emalangeni, which fine may be amended by the Minister by notice published in the Gazette, or to imprisonment for a period not exceeding five years or to both fine and imprisonment.