The Rubbish Fix

Cheng Yuan Yuan examines the new laws on the management of solid waste

 

 

 

 

INTRODUCTION

After several years of tweaking and fine-tuning, the Bills on rubbish handling finally made their way through the Malaysian Parliament and emerged as the Public Cleansing Management Corporation Act 2007 ("MCA") and the Solid Waste and Public Cleansing Management Act 2007 ("WMA").

 

The MCA and WMA will come into force on a date to be appointed by the Minister of Housing and Local Government ("Minister"). It should be noted that these legislation do not apply to Sabah and Sarawak.

 

The MCA and WMA will enable the Federal Government to take over solid waste management and public cleansing from the local councils and state governments. Notwithstanding the foregoing, the Ministry has acknowledged that the local authorities will have significant roles to play to ensure that the WMA is enforced effectively.

 

 

THE MANAGEMENT CORPORATION

The MCA establishes the new Solid Waste and Public Cleansing Management Corporation ("Corporation") which operates under the Ministry.

 

Section 17 of the MCA charges the Corporation with various responsibilities including recommending and implementing policies, plans, strategies and standards in respect of waste management and public cleansing management services and monitoring compliance with and enforcing laws, standards and codes of conduct on solid waste and public cleansing management.

 

 

THE WASTE MANAGEMENT ACT

The WMA seeks to regulate the management of solid waste and public cleansing. Some of the salient aspects of this legislation are discussed below.

 

 

Solid Waste Management Facilities

 

One of the objectives in respect of environmental stewardship under the Ninth Malaysian Plan is the promotion of environmental management, which includes the implementation of the Solid Waste Management Strategic Plan with emphasis on the upgrading of unsanitary landfills as well as the construction of new sanitary landfills and transfer stations with integrated material recovery facilities.

 

Section 8(1) of the WMA requires a person to obtain the prior written approval of the Director General of Solid Waste and Public Cleansing Management ("Director General") before constructing any prescribed solid waste management facilities.

 

Solid waste management facilities means any land, fixed or mobile plant and systems used or intended to be used for the handling, storage, separation, transport, transfer, processing, recycling, treatment and disposal of solid waste. These facilities include transfer stations, disposal sites, sanitary landfill, incinerators and other thermal treatment plant, recycling plants and composting plants.

 

Likewise, the prior written approval of the Director General is required before any alteration can be made to any prescribed solid waste management facilities which may:

 

(a) affect the performance of such facilities; or

(b) cause adverse environmental impact; or

(c) impede the quality and level of solid waste management services; or

(d) adversely affect public health; or

(e) affect the overall planning of solid waste management services.

 

 

Licensing

 

The WMA regulates the licensing of solid waste management service providers. Section 14 requires any person who (a) undertakes or provides solid waste management services, or (b) manages or operates solid waste management facilities, or (c) undertakes or provides public cleansing management services to hold a licence under the WMA.

 

A licence may be issued subject to conditions, such as the duration of the licence, the nature, extent and frequency of the services to be provided, the area where the services are to be provided, the types of controlled solid waste and the facilities to which collected solid waste is to be delivered.

 

The Director General may impose additional conditions on a licence after giving the licensee an opportunity to make written submissions.

 

 

The 3Rs - Reduction, Reuse and Recycling

 

To promote reduction, reuse and recycling of controlled solid waste, Section 101 of the WMA empowers the Minister to require:

 

(a) any solid waste generator to reduce the generation of controlled solid waste in any manner or method;

(b) any person to use environmental friendly material;

(c) any person to use a specified amount of recycled materials for specified products;

(d) any person to limit the generation, import, use, discharge or disposal of specified products or materials;

(e) the implementation of coding and labelling systems for any product or material to promote recycling;

(f) the use of any method or manner for the purpose of reducing the adverse impact of the controlled solid waste on the environment; and

(g) the use of any method or manner for the purpose of reduction, reuse and recycling of the controlled solid waste.

 

 

The Take-Back System

 

The take-back and deposit refund system which imposes an obligation on manufacturers and producers to “take back their rubbish” is perhaps the most interesting concept under the WMA.

 

Section 102(1) empowers the Minister to establish a take back system which:

 

(a) require specified products after use to be taken back by the manufacturer, assembler, importer or dealer and require the manufacturer, assembler, importer or dealer to recycle or dispose at its own cost the products taken back in a specified manner;

(b) require any person to deliver specified products to the manufacturer, assembler, importer or dealer; and

(c) require any dealer of specified products to receive and store such products which are taken back.

 

The Minister may establish a deposit refund system under Section 102(2) and determine (a) the specified products, (b) the deposit refund amount, (c) the labelling of the products, and (d) the obligations of the dealers of such products.

 

 

The Tribunal for Solid Waste Management Services

 

Section 34 of the WMA establishes the Tribunal for Solid Waste Management Services ("Tribunal").

 

The Tribunal has the jurisdiction to determine any claim that arises from:

 

(a) the recovery of charges, fees or levy for solid waste management services by a licensee or the Corporation; or

(b) any dispute over any charges, fees or levy imposed for solid waste management services between the licensee or the Corporation and the owner, occupier, local authority or solid waste generator.

 

The claim is to be brought within 3 years and, unless expressly agreed in writing between the parties, the award sought from the Tribunal must not exceed RM50,000. Neither party may be represented by an advocate and solicitor unless the Tribunal is of the opinion that the dispute involves complex issues of law and that a party will suffer severe financial hardship if he is not so represented. Where the Tribunal allows a party to be represented by an advocate and solicitor, the other shall likewise be entitled to be so represented.

 

The Tribunal is required, where practicable, to make its award within 60 days from the first day that the hearing commences. The Tribunal may refer any question of law to a High Court Judge and if it does so, the Tribunal shall make its award in conformity with the Judge's decision.

 

The Tribunal's award is final and binding on the parties and may be enforced as though it were an order of a Sessions Court or Magistrate's Court.

 

 

The Big Stick

 

The seriousness with which Malaysian Government views the need to deal with the issue of waste management can be seen from the various sanctions imposed for non-compliance.

 

Non-compliance with the conditions of a licence issued under Section 19 of the WMA may result in a suspension or revocation of the licence under Section 23(1). Such non-compliance also constitutes an offence which is punishable with a fine of not less than RM25,000.00 and not more than RM50,000.00 or a term of imprisonment not exceeding 2 years or both under Section 20(2). In the case of a continuing offence, a fine not exceeding RM2,500.00 is payable for each day that the offence continues.

 

The failure by any person, including consumers or end-users, to comply with any directive issued by the Minister in respect of any reduction, reuse and recycling of controlled solid waste under Section 101(1) or any take-back and deposit refund system under Section 102 is an offence which is punishable with a fine not exceeding RM10,000.00 or a term of imprisonment not exceeding 6 months or both.

 

Non-compliance with an award of the Tribunal attracts not only civil sanctions but is an offence under Section 62(1) and is punishable with a fine of not less than RM5,000.00 and not more than RM10,000.00 or a term of imprisonment not exceeding 2 years or both.

 

 

CONCLUSION

The wide-range of sanctions for non-compliance with the provisions of the WMA and orders made thereunder will compel Malaysians from all walks of life, be they licensees or operators of solid waste management facilities or consumers, to adopt a lifestyle that ensures that solid waste is properly dealt with.

 

Perhaps the enforcement of the MCA and the WMA will pave the way for a cleaner Malaysia.

 

 

 

CHENG YUAN YUAN ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 
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