Mine waste forms approximately 80% of South Africa’s waste stream. For many years, though, it did not form part of the country’s definition of waste, and was thus not directly part of the evolvement of the standards in waste management.
Amendments to existing legislation have changed all of this, however, also enforcing substantial fines for non-compliance.
South Africa has a complex set of legislation governing waste generated by mines. The Minerals and Petroleum Resources Development Act (MPRDA) of 2002 was previously the principal piece of legislation regulating residue stockpiles and deposits – the latter being any material derived from or incidental to a mining operation and that is disposed of or stored for potential re-use by the holder of a mineral right.
The National Environmental Management: Waste Act of 2008 (the Waste Act) governed other forms of waste generated by mines, with the exclusion of residue stockpiles. The environmental legislation regulating mining has since been streamlined, and residue stockpiles and deposits falling within the definition of waste under the Waste Act are now subject to its provisions, including waste management-licensing requirements.
The National Environmental Management Act of 1998 and National Water Act of 1998 also affect waste management at mines, as they create overarching duties of care to take reasonable measures to prevent pollution and may require additional licences for waste management facilities.
Sandra Gore, director at Cliffe Dekker Hofmeyr’s environmental practice says: ‘This also includes obligations arising under the “cradle to the grave principle”, which holds a waste generator liable for pollution resulting from the waste even if it is no longer under the generator’s control.
‘The onerous contaminated land provisions may also now be applicable to land on which residue stockpiles and deposits are situated. These create strict requirements for the reporting, assessment and registration of land that is regarded as contaminated.’
According to Gore, non-compliance with this legislation can lead to fines as high as ZAR10 million, in addition to the shutdown of non-compliant facilities.
‘There are also the risks of shareholder and director liability, as well as imprisonment for employees in positions of management,’ she says, adding that the new regulations recently published under the Waste Act are far more detailed and onerous than those previously applicable under the MPRDA.
‘They regulate the construction and operation of residue stockpiles and deposits, and require the lining for stockpile facilities in certain circumstances,’ she says.
‘Mines would need to assess if these regulations are applicable to them before they develop waste management facilities, and ensure that such facilities are constructed in accordance with the requirements.’
Asked whether this new legislation is comprehensive enough or, conversely, too restricting, Gore answers that it is ‘extremely comprehensive’. She says that ‘while they go a far way to ensuring the legacy of pollution from mine dumps is not repeated with existing mines, they have been criticised by many as being too onerous for developing countries, with the significant costs involved restricting the feasibility of mines and the socio-economic benefits flowing from mines’.
Leon Bredenhann, senior consultant at Golder Associates, says that mining waste had to be included as part of the waste definition in the Waste Act. ‘The main reason being that the playing field had to be levelled in the sense that protecting the environment against the harmful effects of contaminant should be equally important, whether the contaminant is part of the mining waste or industrial waste stream,’ he says, adding however, that the means of protecting the environment should not necessarily be the same.
‘I would therefore prefer the new legislation to be less restrictive when warranted and without compromising the protection of the environment in respect of its prescriptive approach,’ he says.
‘Mine-waste disposal is based on a core assumption that waste is not waste but rather a resource to be used some time in the future,’ says Anthony Turton, professor at the Centre for Environmental Management, University of the Free State. Africa is currently in a favourable position with regard to legal and policy reform, he adds.
‘If it grasps that opportunity and recognises that legal reform needs to be a balance between the carrot and the stick – incentivisation for investment into brownfield sites and punishment for non-compliance – then we can make the transition to a post-mining future somewhat less traumatic,’ says Turton.
‘Mine-waste disposal is based on a core assumption that waste is not waste but rather a resource to be used some time in the future’
Should we fail to take advantage of this opportunity to incentivise investment into brownfield sites, he counters, the industry will suffer catastrophic consequences, resulting in the ‘crash closure of most mines’.
Bredenhann says that in his experience, mines have generally embraced the new regulations, though with financial caution. ‘They also show intelligent responsibility in questioning the standards necessary to protect the environment,’ he says.
Mines have started to act in terms of waste classification and assessment, and conforming to the new standards of design, he adds. They also have to begin implementing the activities authorised under the MPRDA, where these are lawful in terms of the transitional arrangements.
‘There is also movement in the mining industry to start addressing contaminated land, which is largely the result of mismanagement of waste,’ he says.
Turton believes that legal reform is indeed a very important issue, though he says the existing laws are not an enabling instrument for investment into brownfield sites. ‘As the law currently stands, it recognises the financial liability for rehabilitation, for which a financial payment has to be made.
‘It does not recognise the benefit of actual rehabilitation, so it fails to quantify potential benefits to be derived from offset trading between the benefit of post-mining rehabili-tation and the known financial quantum of liability,’ he says. ‘This makes brownfields sites uninvestable’.
According to Bredenhann, government is generally ‘sensitive’ to the effects of the waste legislation as it now also applies to mining.
‘In this sense, government in many instances appears to have an open-door policy in respect of assisting the mines on design standards to safely dispose of mine waste,’ he says.
‘In terms of the enforcement issue, which is critical to ensure that legislation has the required environmental outcomes, the mining industry is not low on the priority list of the enforcement inspectorates of government.’
The attitude, he adds, has largely been one of a ‘pull rather than push motivation’, as the inspectorates often assist in reaching agreement on a compliance strategy with a specific mine.
With so much legislation in place, there are surely significant cost implications for mining companies. Gore answers in the affirmative.
‘Detailed studies by several specialists involved [found] licensing requirements and the compulsory pollution prevention measures can result in a substantial portion of the capex required for mines’ development,’ she says.
‘The new legislation has also resulted in profit losses for mines, and if the waste management facilities have not yet been construc-ted, development of mines [will have been] delayed in order for mines to obtain licences that were not required at the outset of the development.’ Ongoing monitoring and reporting needs also require significant capex.
Bredenhann adds that, as with the minimum requirements that led to significant cost increases in the managing and disposal of wastes, the same pattern is expected with regard to mining wastes. But the size of the mining waste stream is a concern, as it results in very large disposal footprints that could, given the new standards, have significant cost implications for mines.
‘This is especially of relevance in the instance of waste rock, which normally has a very low [harm] effect – if any – on the environment. These wastes will now also require liner designs that, due to the size of the waste rock streams, become relatively expensive,’ he says.
Turton believes that South African law is sophisticated enough to adequately encourage the safe disposal of mine waste, and that it has a well-established reporting procedure applicable to all operating companies. If legal reform recognises that brownfield mine sites are unable to attract investment as they currently stand, then the industry is making headway, he says.
‘If the legislation recognises there is a need to attract investment into brownfield sites, then it can incentivise that process by allowing the quantum of benefit arising from rehabilitation to be calculated and legally brought onto the balance sheet in a way that offsets the known liability for environmental damage.’ Failing to get that reform will merely hasten the demise of brownfield mining sites by accelerating the desire to disinvest.