Health Care Risk Waste: Management and Liability

By the Shepstone & Wylie Environmental Law team

Recent reports of and fines imposed by the Green Scorpions relating to the illegal disposal of waste suggest a lack of understanding and training with regards to the safe and legal disposal of medical waste by most companies and service providers.

Health Care Risk Waste (HCRW) is that hazardous portion of healthcare waste that includes wastes from natal care, diagnosis, treatment or prevention of disease in humans, infectious waste, infectious sharps and pharmaceutical waste (expired, unused, spilt or contaminated drugs, medicines and vaccines, including packaging materials). The management of and liability for HCRW is governed by many pieces of international, national, provincial and local legislation, as well as other associations / body regulations.

In terms of the National Environmental Management: Waste Act 59 of 2008 (NEMWA) a holder of waste includes any persons who generates, imports, stores, accumulates, transports, processes, treats, or exports waste or disposes of waste. HCRW generators have a duty of care to handle, store, transport and / or dispose of waste in an environmentally sound and legally compliant manner. This full-circle responsibility is referred to as “life-cycle responsibility” or “cradle-to-grave” responsibility. It is important that all HCRW generators have a standard operating procedure for the disposal of waste. This procedure should be detailed in a Waste Management Plan that ensures legal compliance.

The waste generator must ensure that the waste is handled only by service providers permitted to transport and dispose of it. Disposal must take place through a waste disposal facility that is licensed in terms of NEMWA to accept, treat and/or dispose of such waste. The waste generator, however, is not the only party with legal responsibilities. In the last newsletter we highlighted the importance of companies following the waste manifest system when handling hazardous waste, particularly HRCW. In terms of the Waste Classification and Management Regulation of 2013, the waste transporter and waste manager or consignee have an equal obligation as the generator or consignor of waste to ensure that all waste is handled correctly until its final disposal by checking and filling out relevant portions of the waste manifest document before accepting any waste.

A recent unreported case illustrates the risks of not following proper waste management procedures.  A hospital group appointed a service provider to collect and store its HRCW. The service provider collected the waste and took it to a residential area in Johannesburg where it was stacked to the roof of the facility and overflowing onto the driveway. The Green Scorpions were called in and they held both the service provider and the generator liable for the unsafe management of the waste. The waste generator was held accountable because the waste was theirs, and as such, they had a responsibility to ensure that not only was the service provider authorized to transport the waste but also that the waste itself was disposed of in a facility authorized to manage such waste, and this was clearly not done. The service provider was held accountable because the treatment / disposal facility it used did not comply with the legal requirements for the treatment / disposal of HRCW under NEMWA.

This case is an important reminder to both waste generators and service providers to get their house in order and ensure that they are operating within the legal requirements. It’s not enough for the waste generator to get the waste off its premises, but they must follow up through the waste manifest system that its waste is correctly disposed of by the waste transporter and manager. Many existing HCRW service providers are not properly licensed under NEMWA and local by-laws to handle HCRW and can become a huge liability to companies generating HCRW. It is therefore essential that companies verify the licenses of service providers before engaging their services.

For more information on the above, please contact:

Ian Sampson
Head of the Environmental & Clean Energy Law department
+27 31 575 7205 (DBN)
+27 11 290 2540 (JHB)
+27 82 775 3720
sampson@wylie.co.za

Or

Siya Mkhize
Associate in the Environmental & Clean Energy Law department
+27 31 575 7224
+27 82 562 3674
smkhize@wylie.co.za