Environmental regulations for mining activities in South Africa

Environment

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The National Environmental Management Act 1998 (NEMA) is the framework legislation regulating the environment. The DMR is the competent authority responsible for enforcing the NEMA insofar as it relates directly to prospecting and mining activities. The Minister of Environmental Affairs, however, is the authority responsible for creating regulations under NEMA (including regulations that the DMR must apply and enforce). The Minister of Environmental Affairs is also the ultimate authority in respect of appeals against environmental authorisations, compliance notices or directives issued by the DMR.

Other important environmental laws include:

• the National Water Act 36 of 1998;
• the National Environmental Management - Waste Act 59 of 2008 (NEMWA);
• the National Heritage Resources Act 25 of 1999;
• the National Environmental Management - Biodiversity Act 10 of 2004; and
• the National Environmental Management Air Quality Act 39 of 2004.

The DMR is the competent authority for approving environmental authorisations for prospecting and mining activities and activities directly associated therewith. The DMR is also responsible for enforcing the provisions of the NEMA or the environmental authorisation.

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

Applicants for a prospecting or mining right must apply for and obtain an environmental authorisation under NEMA before the right is granted. Depending on the activities that the applicant will undertake, the applicant must conduct either a basic assessment or a scoping assessment and environmental impact assessment to investigate and assess the impacts of the activities on the environment. These processes must include a public participation process with all interested and affected persons. The outcomes of the assessment, investigations and public participation process are included in a report and submitted to the DMR for consideration. If the DMR is satisfied with the report and the mitigation measures contained therein, an environmental authorisation may be issued. In terms of the One Environmental System, this process should take 300 days.

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

An applicant or holder of a right or permit must determine and make financial provision to guarantee the availability of funds to undertake rehabilitation and remediation of the impacts arising from the prospecting or mining activities. The financial provision can be by way of financial bank guarantee, deposit into an account administered by the Minister of Mineral Resources, or a contribution to a trust fund.

The holder of a right is responsible for all environmental impacts arising from its activities and may (notwithstanding the issuing of a closure certificate) remain responsible.

What are the restrictions for building tailings or waste dams?

A waste management licence under the NEMWA is required for the creation of residue stockpiles. Applicants for waste management licences must complete an environmental impact assessment process in accordance with NEMA. The MPRDA Regulations require that stockpiles are to be designed by ‘competent persons’ such as registered engineers. This includes civil or mining engineers registered under the Engineering Profession of South Africa Act 114 of 1990. Stockpiles must comply with landfill requirements as well as with the National Norms and Standards for the Assessment of Waste for Landfill Disposal 2013 and National Norms and Standards for Disposal of Waste to Landfill 2013.