Government sharpens its tools for mine water management

By Kirsty Kilner, Partner & Tendai Bonga, Senior Associate at Webber Wentzel

The long-awaited National Environmental Management Amendment Bill (NEMLAA4), which has been approved by Parliament, will help to address the potential impacts of mining on South Africa’s scarce water resources

The pressure on South African mining companies to raise their standards of Environmental, Social and Governance behaviour is expected to gain added momentum this year with the recent parliamentary approval of the National Environmental Management Amendment Bill (NEMLAA4). The Bill, which has been sent to the President for signature, includes some stricter new measures that relate to the management of mine water.

In a recent paper (“Water Sustainability of Selected Mining Companies in South Africa” – MDPI 2017), Askham and van der Poll said the South African mining industry is not a large consumer of the country’s limited water resources, but it can have a substantial impact on the quality of water. The country has about 6 000 abandoned mines, many of which are responsible for acid mine drainage, and this must be addressed at taxpayers’ cost, as the responsible parties are impossible to identify.

Once NEMLAA4 becomes law, it will introduce a broad range of important changes in the environmental legal landscape.  Many of these changes are aimed at addressing issues and legislative gaps that have arisen as a result of the implementation of the One Environmental System (OES) in December 2014.

The OES resulted in a paradigm shift in the regulation of environmental matters in the mining industry from the Mineral and Petroleum Resources Development Act 28 of 2002 to the National Environmental Management Act 107 of 1998 (NEMA).

Kirsty Kilner, Webber Wentzel

NEMLAA4 will introduce a new section 24PA under NEMA that will specifically regulate the financial provisioning requirements which apply to mining (along with the Financial Provisioning Regulations already published under NEMA – which are soon to be replaced).  These amendments include a provision which will empower the Minister of Water and Sanitation to access all or part of the financial provisioning that has been set aside by a holder of an environmental authorisation for a mining activity if that holder fails to mitigate or rehabilitate the environmental impacts of its activities.

The Minister of Water and Sanitation merely needs to provide the holder with written notice of his intention to access this provision.  Under the current section 24P of NEMA, only the Minister of Mineral Resources has the power to access a holder’s financial provisioning to rehabilitate or manage environmental impacts which have not been adequately managed by the holder.

This is a welcome amendment, given the controversy that has surrounded the implementation of the OES, which gave the Minister of Mineral Resources and Energy the power to make decisions regarding environmental management on mine sites. Many argued this was putting the “fox in charge of the hen house”.

The Minister of Water and Sanitation will also have a voice in relation to the annual drawdowns which holders can access during the 10 years before final decommissioning and closure to support final decommissioning and closure measures.  This approach, which is in line with NEMA’s integrated environmental management objectives, will facilitate a proactive approach to the way that mine water is addressed before a mine reaches closure.

Another key change is the introduction of penalties for failing to comply with certain financial provisioning obligations under section 24PA of NEMA. It could see mining companies, as well as responsible directors, being prosecuted and facing a fine of up to R10 million and/or 10 years’ imprisonment.

These proposed amendments have the potential to significantly improve the management of mine water in South Africa – a desperately needed step in view of continued water shortages and a deterioration in water quality.

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