THE TRANSITION FROM THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT TO THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT CONTINUES
In the past few years, several amendments have been introduced to the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) and the National Environmental Management Act, 1998 (NEMA). The primary purpose of these amendments was to ensure that all environment-related aspects of mining would be regulated through one environmental system contained in NEMA and repeal all environmental provisions in the MPRDA. This system is known as “One Environmental System”, which for the current purpose commenced on 8 December 2014.
Readers may recall that before the introduction of the One Environmental System, an applicant for a right or permit in terms of the MPRDA had to obtain multiple environmental approvals from various departments, including those responsible for mineral resources and, potentially also, environmental affairs. The application and approval process was cumbersome, uncoordinated and resulted in litigation in some instances.
The introduction of the One Environmental System sought to rectify this problem and its principles are laudable. Unfortunately, the amendments were introduced in an unsynchronised manner, and in some instances prematurely repealed operational provisions without implementing the necessary amendments. An additional problem is that some of the One Environmental System transitional provisions lack clarity.
As a result, the recently published National Environmental Management Laws Amendment Bill (the Bill) contains a number of proposals to amend NEMA so as to effect a more coherent legislative transition to One Environmental System, among other things.
The key proposed amendments are discussed below.
The transitional provisions in NEMA, the MPRDA and the National Environmental Management: Waste Act, 2008 (Waste Act), among others, have presented various difficulties. For example, the status of an environmental management programme (EMP) approved in terms of the MPRDA before the NEMA amendments came into force is not crystal clear. One has to employ various complex interpretation mechanisms to conclude that such EMPs are environmental authorisations for the purposes of NEMA. The provisions which made this clear were never brought into force. The existing transitional provisions do not cover all the scenarios that require transitional regulation. For example, there is some debate as to whether a pending application to amend a mining EMP in terms of section 102 of the MPRDA is a pending application for the purposes of the National Environmental Management Act 62 of 2008.
Some clarity on this is provided in Regulation 54 of the Environmental Impact Assessment Regulations, 2014. The lawfulness of Regulation 54 is open to doubt because the transitional arrangement it contains comes up for the first time in the regulation and it is not self-evident whether the Minister of Environmental Affairs has the power to make a regulation of this nature.
In an apparent ongoing effort to clarify the transitional provisions, the Bill includes new draft transitional provisions. If enacted in the current form, these would resolve some of the gaps in the existing transitional provisions in the regime governing the One Environmental System. The Bill proposes that an EMP approved in terms of the MPRDA on or before 8 December 2014 shall be deemed to have been approved in terms of NEMA and an environmental authorisation issued.
These proposed amendments are welcomed, but the Bill proceeds to introduce a web of other complex transitional arrangements for applications for rights or permits in terms of the MPRDA that were pending on 8 December 2014. In this regard, the Bill states that an EMP approved in respect of such applications will only be deemed to be an environmental authorisation if the applicant had obtained environmental authorisation for the “ancillary activities” in terms of NEMA and , if required, a waste management licence in terms of the Waste Act.
This conditional recognition of EMPs approved under the MPRDA also extends to those approved on or before 8 December 2014. Again, these EMPs will only be regarded as an environmental authorisation if the holder or the applicant had also obtained environmental authorisation and a waste management licence, if one was required, for the “ancillary activities”. What is contemplated by this term is not clear. This effectively restores the confusion that prevailed prior to the judgement in the City of Cape Town v Macssand matter.
The solution to all of this is a clean recognition of the EMPs approved in terms of the MPRDA as environmental authorisations. Any shortcomings in such EMPs could be rectified through an amendment process following an audit.
Sequencing of environmental approvals
Until recently, it was common for a mining right or permit applicant to obtain the right or permit and have the EMP approved before getting environmental approvals in terms of other environmental legislation. For example, the applicant often obtained the mining right or permits prior to obtaining a water use licence for the mine, or an atmospheric emission licence for the smelting and refining operations. The mismatch in the approval process exposes the holders of the mining rights or permits to an enforcement risk. The delays in the granting of the different environmental approvals delay the commissioning of projects and in some instances completely undermine the viability of the projects.
The Bill now proposes to provide for simultaneous submission of an environmental authorisation application and any other related licence or permit required under any of the specific environmental management Acts. Prior to the Bill, there were other variations of the integrated licensing regime which were not effectively implemented. For example, the water use licences always lagged behind even where one followed an integrated licensing approach. As a result, the success of the proposed amendments depends on the manner in which they are implemented. If properly implemented, this amendment will further the objects of the One Environmental System.
Management of residue stockpile and residue deposits
In 2008, NEMA was amended to specifically provide that residue stockpiles and residue deposits must be deposited and managed in accordance with the provisions of the Waste Act. On 2 September 2014, the Waste Act was substantively amended to include the residue stockpiles and residue deposits. The applicability of the Waste Act to the residue stockpiles and residue deposits created some difficulties.
The difficulties include the fact that the residue stockpiles and deposits are currently subject to the licensing provisions of the Waste Act, which previously did not apply to mine waste. In practice, the authorities suddenly required the residue stockpiles and deposits facilities to be lined with impermeable barriers, and required the residue deposits and stockpiles to be classified in accordance with the waste management classification regulations. These requirements have caused consternation in the industry and have led to litigation in some instances.
The Bill proposes to revert to the pre-2014 position when the Waste Act was not applicable to residue stockpiles and deposits. To this end, the Bill proposes to amend both NEMA and the Waste Act. The net effect of all the proposed amendments is that if the Bill is enacted in the current form, the residue stockpiles and deposits will be regulated or managed in terms of NEMA.
However, the Bill does not contain any substantive provisions setting out clearly how the residue stockpiles and deposits regime in NEMA will look. The Bill only contains transitional provisions, which state that despite the repeal of the provisions relating to residue stockpiles and deposits in the Waste Act, the approvals or licences granted under the Waste Act remain in force. Further, the regulations made in terms of section 69(iA) of the Waste Act also remain in force despite the repeal of the empowering provision and are deemed to be made in terms of NEMA. Those regulations primarily catered for new residue stockpiles and deposits, and those created in terms of a mining right. There was never a clear environmental regime for residue stockpiles and deposits created prior to 2004 when the MPRDA commenced, and which are not held under a mining right. This regulatory gap needs to be addressed.
Financial provisioning for rehabilitation
Section 24P of NEMA is proposed to be amended to provide that the obligation to set aside financial provision for progressive rehabilitation, mitigation, mine closure and the management of post closures environmental impacts applies to a holder of a right or permit issued in terms of the MPRDA and not just the applicants for environmental authorisations associated with such rights.
Section 24P further makes it clear that the holder of a right or permit issued in terms of the MPRDA is obliged to annually assess the environmental liability, although the audit report only has to be submitted to the Minister of Environmental Affairs every three years.
The portion of financial provision which may be required to rehabilitate residual or any other environmental impacts of the closed mine is required to be ceded to the Minister responsible for mineral resources, who must retain this portion in perpetuity. This removes any discretion from the Minister to determine the appropriate period for retaining the financial provision for latent environmental impacts that may become known in future.
The proposed amendment will have to be aligned with the amendment contained in the MPRDA Bill which the President declined to sign into law and referred back to parliament for reconsideration. In terms of the MPRDA Bill, the Minister has the discretion to retain the financial provision “for such period, as the Minister may determine having regard to the circumstances relating to the relevant operation, which portion and period must be determined in the prescribed manner”.
Appointment of environmental inspectors
As recently as February 2017, the mandate of national environmental management inspectors versus “environmental mining inspectors” was still subject to litigation because of their overlapping mandates. The Bill proposes a new section that requires all the environmental inspectors to exercise their respective powers in accordance with any applicable duty. One such duty is acting within the mandate of the relevant inspector as this promotes administrative efficiency. This will require a full understanding of the mandate of the inspector who visits an operation. That understanding can be deduced from the designation of the inspector, which should be produced on demand.
Until recently, the environmental inspectors could only question people if they had reasonable suspicion of non-compliance. This hamstrung the enforcement compliance in some instances, especially where the inspector was acting on a tip-off and had not formed a reasonable suspicion of contravention himself or herself. The proposed amendments now allow the environmental inspectors to question a person without the requirement of a reasonable suspicion.
The introduction of the One Environmental System and its principles are laudable, but it is important that the remaining gaps are addressed, from the gaps in the regulation of residue stockpiles and deposits to the question marks over the meaning of terms such as “ancillary activities”.