CLARITY ON THE APPLICABILITY OF LINING REQUIREMENTS TO RESIDUE STOCKPILES AND RESIDUE DEPOSITS
There have been substantial changes to legislation governing the management of Residue Stockpiles and Residue Deposits (“MRDRS”) as part of the “One Environmental System”. In a nutshell MRDRS have been included under the regulation of the NEMWA and there has been a change to GN R921 by GN R633 by the addition of two new activities to the list of waste management activities requiring a Waste Management Licence (WML) for the establishment or reclamation of residues. The Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits from a Prospecting, Mining, Exploration or Production Operation (“Residue Management Regulations”) have also been published for implementation.
A WML is subsequently required for, amongst others, the establishment of new MRDRS and a pollution control barrier system will have to be designed in terms of the National Norms and Standards for the Assessment of Waste for Landfill Disposal (GN R635 of 23 August 2013) and the National Norms and Standards for the Disposal of Waste to Landfill (GNR 636 of 23 August 2013 (collectively referred to as “the Norms and Standards”). MRDRS must also be designed and managed in terms of the requirements of the Residue Management Regulations. The general view of industry is that the Norms and Standards were originally drafted for landfill disposal that are permanent disposal sites containing waste material that can, in nature, differ significantly from mineral waste. To implement the required pollution control barrier systems may be very costly for MRDRS and could render mining projects economically unviable.
In terms of the transitional provisions, MRDRS authorised prior to 2 September 2014 in terms of an Environmental Management Plan/ Programme (EMPr) that were approved under the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) are deemed to be legally authorised under the NEMWA and no WML is required. Such MRDRS activities should have been described, with risks and management measures associated thereto provided for within the EMPr. In such a case, the holder of the EMPr must ensure that the management measures prescribed in the EMPR are implemented and no additional pollution barrier system in terms of the Norms and Standards will be required.
However, a Water Use Licence (WUL) is required in terms of section 21(g) of the National Water Act 36 of 1998 (NWA) and the Department of Water Affairs (DWS) has the discretion in terms of sections 22(2)(c), 27 and 29 of the NWA to require a pollution barrier system as a condition in a WUL. Mining operations with approved EMPrs for MRDRS could therefore still be required to implement a pollution barrier system if the DWS includes such requirement into a WUL.
The Chamber of Mines has corresponded with the DWS regarding the applicability of liner requirements to MRDRS, proposing that the DWS adopts a risk based approach when determining the requirements of the pollution barrier system for MRDRS during the WUL application.
The DWS accepted the proposal in a letter addressed to the Chamber of Mines dated 29 June 2016 subject to the DWS being satisfied that the proposed alternative pollution barrier system will achieve the objective of preventing pollution of the water resources or that the pollution barrier system must be equivalent to the system prescribed in the Norms and Standards. The letter also indicated that the Department’s engineers will be informed of this decision to enable them to implement the decision from the date of signature of the letter.
The good news is that the DWS acknowledged in the letter that there is a need for the amendment of the Regulations by the Department of Environmental Affairs (DEA). DWS also indicated that the decision in the letter will be communicated to the DEA to emphasize the need to amend the Norms and Standards. It remains to be seen how the DWS officials will implement the decision and if DEA will indeed amendment the regulations to encourage economic growth and investment in the mining industry.
For assistance with the facilitation of WML applications, amendments to existing EMPrs or waste classifications and characterisations please contact Minnette le Roux at firstname.lastname@example.org or 083 660 0622 / 012 807 7036 from our Mining Department.