Creating and enforcing laws that ensure effective environmental management in the mineral and petroleum extractive sector (the mining sector) and simultaneously avoiding over-regulation is a difficult but imperative task. Not achieving the right balance can lead to economic hardship for mining companies on the one hand, or disastrous environment pollution on the other hand. Avoiding over-regulation requires meaningful engagement between regulators and the regulated. The regulation of mine residue stockpiles and deposits (stockpiles) is one such area where environmental legal over-regulation is creating a negative environment for the mining sector because strict requirements relating to pollution control barrier systems are resulting in unnecessary expenditure for the sake of ensuring environmental legal compliance.
The National Environmental Management: Waste Act, 2008 (NEMWA) and the Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits, 2015 (Regulations) oblige stockpiles to be fitted with the same costly pollution control barrier systems that are required for landfill sites. This is despite the fact that it may be unnecessary to install such a system in light of the nature of a particular stockpile. Recognising that the assumption that all stockpiles require landfill-type barrier systems is misplaced, the Minister of the Department of Environmental Affairs (DEA) has turned her sights to addressing the over-regulation of stockpiles.
Turning back the clock, after protracted discussions between the Department of Mineral Resources (DMR) and the DEA, the One Environmental System (OES) was legislated through the enactment of the National Environmental Management Laws Amendment Act, 2014 (NEMLA 3). NEMLA 3 came into force on 3 September 2014 bringing into effect various legislative amendments that gave effect to the implementation of the OES. However, almost as soon as it had started, it stumbled: On 4 September 2014 a DEA press release announced that the implementation of the OES would be delayed until 8 December 2014. This delay intended to give time to put in place various legislative reforms.
NEMLA 3 amended the provisions of the NEMWA to bring mining waste, including stockpiles, within its application. The amended NEMWA provides that stockpiles must be managed in the prescribed manner on any site demarcated for that purpose in the related environmental management plan or environmental management programme (EMPR). The Minister of the DMR was vested with permitting and administrative powers relating to the implementation of NEMWA in the mining sector. At this time, there were no regulations under NEMWA prescribing management measures for stockpiles. Therefore, there was no lawful rationale for requiring the installation of landfill-type barrier systems for MRSDs as a matter of course. However, prior to the implementation of the OES, the Department of Water and Sanitation (DWS) began to indirectly enforce NEMWA requirements relating to the implementation of landfill-type barrier systems. It did so through the water use licensing process. It is worth noting here that pre-OES, stockpiles would have required a water use licence under the National Water Act, 1998 (NWA) and approval in terms of an EMPR. As stockpiles could not be operated lawfully without a water use licence, the DWS indirectly gave effect to NEMWA and enforced landfill-type barrier systems as provided for in the National Norms and Standards for Disposal of Waste to Landfill (Norms and Standards) published under NEMWA.
On 22 May 2015, the High Court gave judgment in Aquarius Platinum (SA) Pty Ltd v Minister of Water and Sanitation and Others. This matter dealt with the implementation of the OES in respect of stockpiles. Although not addressed in detail in the judgement, one of the facts giving rise to the dispute was the fact that the DWS was acting unlawfully by enforcing NEMWA requirements for landfill sites in the water use licensing process. The second issue that arose in the Aquarius Platinum case was the fact that no regulations relating to stockpiles had been published under NEMWA, thereby leaving a legislative lacuna. It was successfully argued in the High Court that this lacuna was untenable and resulted in a finding that the promulgation of NEMLA 3 was unlawful. This judgment was subsequently overturned on appeal without any further consideration given to the actions of the DWS, although it gives an indication of the practical difficulties the implementation of the OES has resulted in for the mining sector.
On 24 July 2015, the DEA published the Regulations, thereby fulling the lacuna. In addition, the listed activities under NEMWA were amended to include the establishment or reclamation of stockpiles as an activity requiring a waste management licence. The nett result of these amendments was that all new stockpiles would require a water use licence under the NWA, a waste management licence under NEMWA, and, in a sense vindicating the position of the DWS, a landfill-type barrier system as described in the Norms and Standards.
For existing stockpiles that were for some reason not approved under an existing EMPR as at 3 September 2014, there were severe consequences. All of these unlawful facilities would need to retrofit landfill-type barrier system in order to be lawfully operated. This dis-incentivised mining companies that had unlawful facilities from engaging with regulators. The position is simply that these facilities would need to be retro-fitted with costly barrier systems or closed.
This one-size-fits-all approach is clearly inappropriate. Certain stockpiles do not warrant the installation of costly landfill-type barrier systems. The discard deposited in certain facilities and the nature of their operations mean that alternative and less costly techniques can be implemented to bring about the same environmental outcomes. However, the regime under NEMWA does not recognise this and is inflexible to the detriment of the mining sector.
This situation is, however, improving. The DWS has indicated that it will not enforce the Norms and Stands barrier system requirements when licensing stockpiles under the NWA. In addition, the main aim of the proposed amendments to the Regulations is to allow for the pollution containment barrier system to be determined on a case by case basis, based on a risk analysis conducted by a competent person.
Where the risk analysis indicates that less stringent systems can be implemented, the DMR will be free to authorise the establishment of a stockpile without landfill type barrier systems.