SOUTH AFRICA - ENVIRONMENTAL REGULATIONS
South Africa, officially the Republic of South Africa, sits on the southern tip of the African continent, with Namibia, Botswana, Zimbabwe, Mozambique, Swaziland and Lesotho bordering. It is the largest country in Southern Africa and the 9th largest on the African continent, with an area of 1.221 million km². Its coastline stretches across two oceans - the South Atlantic and Indian, with only Somalia and Madagascar having longer African coastlines. The South African terrain is primarily an interior plateau, with low-lying coastal regions and mountains in the east, where the Great Escarpment borders the central plateau. The country has a varied climate, broadly speaking it is considered to be semi-arid although multiple climatic zones exist throughout the region.
South Africa is one of the world’s seventeen mega-diverse countries. Its plant life is amongst the richest in the world, with over 20,000 species of plants reportedly found in the region. The country is also home to over 220 species of mammal and over 850 species of bird. While poaching remains an issue in the country, South Africa’s system of national parks and conservation efforts have proved successful in reducing the poaching of species such as elephants, rhinos and the country’s large big cat population.
Pollution of air and water, the introduction of alien species, poaching, climate change, water shortages, soil erosion and desertification are amongst the environmental challenges faced by the country.
PRINCIPAL LEGISLATION AND REGULATOR
The legal framework for environmental assessments and environmental protection in South Africa has been undergoing reform for several years. Most recently, in 2015, the government published the National Environmental Management Laws Amendment Bill for public comment and in November of 2015 promulgated the Financial Provisioning Regulations (FP Reg.), which apply to prospecting, exploration and mining or production operations. The on-going legislative reform is part of the ‘One Environmental System’ effort, which aims to bring the mining industry within the scope of the environmental management system that has applied to other industries for many years, as well as to streamline the overall environmental permitting process. As a result of the on-going reform the EIA process, and more generally the requirements for environmental protection and management, are in a continuing state of flux in South Africa. The system is highly burdensome, complex and reportedly inconsistently applied and enforced by the government.
At present, a wide variety of environmental legislation is pertinent to the mining sector including: the National Environmental Management Act 1998 (NEMA), as amended by the National Environmental Management Amendment Act 2008 (NEMAA) and the National Environmental Management Laws Amendment Act 2014 (NEMLAA); the Mineral and Petroleum Resources Development Act 2002 (MPRDA) as amended by the Mineral and Petroleum Resources Development Amendment Act 2008 (MPRDAA); the Mineral and Petroleum Resources Development Regulations 2004 (MPRDA Reg.); the National Environmental Management Waste Act 2008 (Waste Act); the Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits from a Prospecting, Mining, Exploration or Production Operation 2015 (Mining Residue Regulations); and the EIA Regulations 2014. In addition, the FP Reg. mentioned above apply to applicants and holders of mineral rights and regulate financial provisions for the management, rehabilitation and remediation of environmental impacts, which arise from mining activities and operations (see s. 2 FP Reg.).
The NEMAA and MPRDAA collectively provided for the competency over environmental authorisations for all mining activities (including prospecting, exploration etc.) to be transferred from the Minister of Mineral Resources to the Minister for Environmental Affairs, with NEMA, rather than the MPRDA the governing legislation. Transitional administration periods were outlined, managing the process until December 2017 when the Minister for Environmental Affairs under NEMA would become the competent authority for environmental authorisations. However, although such environmental authorisations will now be regulated under the NEMA rather than the MPRDA as planned, the NEMLAA surprisingly reversed the transition of power from the Department of Mineral Resources (DMR) to the Department of Environmental Affairs (DEA). Thus as it stands the Minister of Mineral Resources, now operating under the NEMA, is responsible for environmental authorisations, as well as waste management licences under the Waste Act, for mining and related activities. Meanwhile the Minister for Environmental Affairs is the appeal authority.
According to section 5A(a), MPRDA “No person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without…a environmental authorisation.” In addition, Listing Notice 1, published in accordance with section 24D, NEMA identifies any activity requiring a prospecting right under section 16, MPRDA and any activity requiring a mining permit under section 27, MPRDA (as well as certain decommissioning activities) as requiring an environmental authorisation (see Activity Numbers 20, 21 and 22, NEMA Listing Notice 1, 2014). While the Listing Notice is silent as to activities under a Mining Right the terms of the MPRDA clearly indicate that such applicants must also acquire an environmental authorisation prior to the commencement of activities (s. 24F, NEMA; see also ss. 16(1), 22(1), 27(2) and 38A(2), MPRDA).
Every environmental authorisation must, as a minimum, ensure that: adequate provision is made for the on-going management and monitoring of the impacts of the activity on the environment throughout the life cycle of the activity; the property site or area is specified; and provision is made for the transfer of rights and obligations (s. 24E, NEMA). Prior to submitting an environmental authorisation application, applicants must appoint an Environmental Assessment Practitioner (EAP) to manage the application, who must meet the requirements outlined in the EIA Regulations (see Reg. 12 and 13, EIA Regulations). The EAP must then determine the level of assessment applicable to the application, taking into account any notices, guidelines or advice from the competent authority (Reg. 15(1), EIA Regulations). Reg. 16 outlines general requirements for applications and, in line with Reg. 16 (3)(b), the DMR has published a template document to be completed by the EAP, which further details the requirements of the application. Where applicable, applications for environmental authorisations may only be submitted after the DMR has accepted the application for the right or permit under the MPRDA. Applications for authorisations on private land require the written consent of the landowner before an application is made (Reg. 42(1), EIA Regulations).
Two types of assessment are provided for within the EIA Regulations: a ‘Basic Assessment’ and a ‘Scoping and Environmental Impact Reporting’ Assessment. In the case of mining and prospecting activities, at present, only a ‘Basic Assessment’ is required (see s. 3(2), NEMA Listing Notice 1, 2014) alongside the application. However the requirements of the DMR’s template form, issued pursuant to Reg. 16 (3)(b), vary slightly from the requirements of the EIA Regulation regarding the ‘Basic Assessment’. Therefore applicants are advised to follow the format of the template form and contact the DMR if unsure about any of the requirements within the NEMA, EIA Regulations or form itself. Regardless the requirements of the EIA Regulations are detailed below and the template form is included under ‘Environmental Law and Regulations’ on this web page.
The requirements for a Basic Assessment are detailed in Reg. 19 and Appendixes 1 and 4, EIA Regulations, a summary of which is provided below:
Application Requirements (Reg. 19, EIA Regulations): Applicants are given 90 days from the date on which the application is received by the Minister to submit:
- A basic assessment report (BAR) and an environmental management programme report (EMPR) and including any specialist reports compiled, which have been subjected to a public participation process (PPP) of at least 30 days and have incorporated any relevant comments received during said process. Alternatively, if the PPP resulted in significant changes or new information relevant to the BAR and / or EMPR applicants may submit a notice to the Minister that, within 140 days from the date the application was received, following a second PPP, the BAR and EMPR (and closure plan if required) will be submitted. Both the BAR and the EMPR must comply with the requirements of the FP Reg. (see ‘Additional Requirements’ below).
- A closure plan must also be submitted where the application for environmental authorisation relates to the decommissioning or closure of a facility. The closure plan must also comply with the requirements of the FP Reg. and meet the requirements of Appendix 5, EIA Regulations.
BAR Requirements (Appendix 1, EIA Regulations): Generally speaking the environmental outcomes, impacts and residual risks of the proposed activity must be well defined in the BAR, which aims to identify the best location for the activity, the impacts of the activity and the mitigation and management measures for such impacts (see. s. 2 (a)-(j), Appendix 1, EIA Regulations). The full content requirements of the BAR are listed in Appendix 1 and include:
- Details of the EAP and his / her expertise; the location of the activity; a description of the activity and the need and desirability of it; activity context and environmental factors – including full details of the regulatory framework applicable; the time period for the environmental authorisation; the proposed site for the activity and reasons for its selection; a description of the process undertaken to identify risks and impacts; an assessment of all risks and impacts; an environmental impact statement; a summary of the findings and recommendations of any specialists reports; the proposed impact management objectives; a description of any assumptions or gaps in knowledge; a reasoned opinion as to whether an authorisation should be granted and any applicable conditions; an oath or affirmation regarding the content from the EAP; and details of financial provisions.
EMPR Requirements (Appendix 4, EIA Regulations): EMPR must comply with section 24N, NEMA which, together with Appendix 4, lists the content requirements and objectives for the EMPR which include:
- Details of the EAP and his / her expertise; a description of the aspects of the activity covered by the EMPR; a description of the impact management objectives, outcomes and actions; the method and frequency of monitoring impact management; the individuals responsible for the implementation of impact management; the time period for measures of impact management to be implemented; the mechanisms for impact management and compliance monitoring; and an environmental awareness plan.
Where an environmental impact assessment process is undertaken as part of the application it must be done so in accordance with Appendix 3, EIA Regulations and include the content outlined in section 24(4)(b), NEMA. Part A of the DMR’s template form ‘Scope of Assessment and Environmental Impact Assessment Report’ suggests that an EIA is required and the template provides clear guidance on the necessary content.
All applications must be submitted to the Minister via the DMR (Reg. 6(2), EIA Regulations). Section 24O, NEMA lists the considerations which the Minister may take into account when considering the application, including: any pollution, environmental impacts or environmental degradation likely to be caused if the application is approved or refused; measures that may be taken to protect the environmental from harm; measures that may be taken to prevent, control or mitigate likely harm and impacts; the ability of the applicant to implement mitigation measures; the ability of the applicant to meet the financial provision requirements; and comments from organs of the state that have jurisdiction over any aspect of the activity. (For a full list of considerations see s. 24O(1), NEMA). In addition, specific consultation requirements are placed upon the Minister, who is required to submit a request for comment by registered mail to the Director-General or provincial head of department of any state department that administers a law relating to a matter affecting the environment. Departments then have a period of 30 days to submit any comments relating to the application (see s. 24O(2) – (3), NEMA).
Upon receipt of the reports and information listed above the Minister must, within 107 days, grant or refuse the environmental authorisation and provide confirmation in writing (Reg. 20(1), EIA Regulations). Within a further five days the Minister must then confirm to the applicant in writing the decision, the reasons for the decision and, if necessary, available appeals (Reg. 4(1), EIA Regulations). In return the applicant must, within eight days of the decision on the application, provide all registered interested and affected parties with the decision and reasons and, if necessary, available appeals (Reg. 4(2), EIA Regulations). Authorisations may be suspended and withdrawn by the Minister (see Regs. 36 – 40, EIA Regulations).
Before the Minister can grant an environmental authorisation, applicants must comply with the terms and obligations prescribed in the FP Reg. (s. 24P(1), NEMA). (See also ‘Additional Requirements’ below).
The FP Reg. were promulgated in 2015 with the aim of regulating financial provisions for the costs associated with the undertaking or management, rehabilitation and remediation of environmental impacts from prospecting, exploration, mining or production operations (Mineral Activities) and potential future environmental impacts. The FP Reg. apply to all holders of rights or permits as defined under the MPRDA (Rights Holders). Rights Holders must determine and make financial provision to guarantee the availability of sufficient funds to undertake rehabilitation and remediation of the adverse environmental impacts of Mineral Activities “to the satisfaction of the Minister” (Reg. 4, FP Reg.). The method for determining the amount of financial provision required is detailed in Regulation 6 and requires detailed costing of the measures required for annual rehabilitation, final rehabilitation, decommissioning and closure (based on a decommissioning and mine closure plan) and remediation of latent or residual environmental impacts (based on an environmental risk assessment report). Calculations must be reviewed and financial provisions adjusted accordingly on an annual basis (Reg. 11, FP Reg.); all determinations, reviews and assessments must be undertaken by a specialist (Reg. 9 (1), FP Reg.) and various financial vehicles are available for the financial provision (see Reg. 8, FP Reg.). Rights Holders must ensure the financial provision is, at any given time, equal to the sum of implementing the necessary measures for a period of at least 10 years (Reg. 7, FP Reg.). Rights Holders must submit various documentation to the Minister including an annual rehabilitation plan and environmental risk assessment report as detailed in Reg. 12, FP Reg. which must be signed off by the CEO or equivalent and an independent auditor (Reg. 13(3), FP Reg.). The Minister may only grant an environmental authorisation when the financial provision has been determined and the relevant plans and reports submitted to the Minister, alongside proof of payment or arrangements to provide the financial provision prior to commencing Mineral Activities (Reg. 14(1), FP Reg.; see also Reg. 10, FP Reg.). The Minister must acknowledge receipt of documentation within 10 days and approve or reject the documentation within 60 days (Reg. 15(1), FP Reg.). In the case of rejection, Rights Holders have 45 days to submit revised documentation. Transitional arrangements are made for financial provisions made under the old MPRDA Regulations 2004 (see Chapter 4, FP Reg.). The sum of the financial provision and the details as to how the sum was reached must also be contained within the EMPR discussed above, copies of which must be accessible on the internet if possible, at the site of the Mineral Activities and accessible to the public on request (Reg. 13(1), FP Reg.). Contraventions of the FP Reg. are punishable by up to 10 years imprisonment, an appropriate fine or both (Reg. 19, FP Reg.).
According to section 24S, NEMA residue stockpiles and residue deposits must be deposited and managed in accordance with the Waste Act, on any site demarcated for that purpose in an EMPR or environmental management plan (EMP). In July 2015, the government promulgated the Mining Residue Regulations under the Waste Act, which aim to regulate the planning and management of residue stockpiles and residue deposits from prospecting, mining and exploration or production operations. Rights Holders with operations to which the Mining Reside Regulations apply must first obtain a Waste Management Licence under the NEMWA, for which the Minister of Mineral Resources remains the competent authority. A Basic Assessment (as discussed above) will need to be conducted as part of the application for a waste management licence for the establishment or reclamation of residue stockpiles or deposits resulting from activities which require a Prospecting Right or Mining Permit under the MPRDA (‘Category A Activities’) (see s. 3, List of Waste Management Activities, 2013 and s. 2, List of Waste Management Activities Amendments, 2015). However, residue stockpiles or deposits resulting from activities which require a Mining Right, Exploration Right or Production Right (‘Category B Activities) under the MPRDA require a ‘Scoping and Environmental Impact Reporting’ Assessment as provided for under the NEMA (see s. 4, List of Waste Management Activities, 2013 and s. 3, List of Waste Management Activities Amendments, 2015). Full requirements for the assessment are provided for under Part 3, EIA Regulations. Stockpiles must be designed by a registered civil or mining engineer (Reg. 7(1), Mining Residue Regulations) and specific requirements apply to site selection (Reg. 6, Mining Residue Regulations). Contraventions of the Mining Residue Regulations are punishable by up to 15 years imprisonment, an appropriate fine or both (Reg. 14, Mining Residue Regulations).