The following interview with SRK Principal Consultant Beth Candy was one of the sources for the Mining Decisions article Given the Green Light
1. What is the current situation with regards to regulation and environmental impact assessments in mining in SA? Have the amendments been finalised? When do they come into full effect? Moreover, how will they be enforced?
Prior to the promulgation for the EIA regulations in 2014, environmental authorisations for mining-related projects were regulated under the Mineral and Petroleum Resources Development Act (MPRDA) of 2002. In 2014, the Department of Environmental Affairs (DEA) identified the need for the alignment of environmental authorisations and proposed a single environmental system where all projects requiring environmental authorisations are regulated under the same law: the National Environmental Management Act (NEMA). For mining-related projects, the competent authority is still the Department of Mineral Resources (DMR).
Environmental impact assessment (EIA) regulations were promulgated in December 2014, stipulating set timeframes for the environmental authorisation process. This includes a 300-day timeframe for the full EIA process, which begins with the submission of the environmental authorisation application form. Within this timeframe, 107 days is allocated to the authority decision based on the submission of the EIA. An amendment to the EIA regulations was gazetted on 7 April 2017, coming into effect on that date.
2. What were the most important or the biggest of these changes or amendments?
The April 2017 amendment to the EIA regulations has resulted in further clarification of requirements and gaps, as well as adjustments to the parameters of listed activities included in the 2014 EIA regulations. The amendment has not changed the authorisation processes; in my opinion, it has merely responded to queries raised by the authorities, the applicant and the environmental assessment practitioner (EAP) when making use of the 2014 regulations.
One of the noticeable additions to the amendment, though not very significant, is that an application to amend an environmental authorisation must be submitted to the relevant competent authority on condition that the environmental authorisation is still valid on the date of submitting the environmental authorisation amendment application. It is important to note that the environmental authorisation subject to an amendment application remains valid whilst pending the finalisation of the amendment application.
3. In your opinion, were these changes necessary, or is it change for change’s sake?
The 2014 EIA regulations were substantially different from the 2006 and 2010 regulations, and a number of uncertainties were identified in the regulations’ Environmental Impact Assessment or Basic Assessment processes. I believe that the amendment to the regulations was necessary as it has assisted in providing clarity to the authorities, the applicants and the EAPs – especially with regard to the requirements associated with auditing and reporting, and with specialist studies. This has resulted in a more effective and thorough environmental authorisation process.
4. Generally speaking, what will these changes or amendments mean for mining companies?
The amendment to the regulations will not result in a change to the authorisation processes undertaken in terms of the 2014 regulations; however, mining companies will need to pay particular attention to the revised listed activities – so that they correctly identify the required environmental authorisation process for a project or activity.
The amendment regulations also clearly outline the transitional provision for mining-related activities (which includes prospecting, exploration, extraction and ore processing) approved before the 2014 regulations – as well as the requirements associated with auditing and reporting.
Environmental management programmes and plans approved under the Mineral and Petroleum Resources Development Act that are still in effect after 8 December 2014, need to adhere to the requirements for auditing and reporting specified in the transitional arrangements in the amended regulations. This will require the submission of the first audit reports – in line with the requirements of the NEMA regulations – before 7 December 2019.
The information requirements of the specialist studies has also been further clarified and expanded in the amended regulations, to ensure that specialist studies submitted with applications are of a similar high standard. These requirements specify that the specialist provides an indication of the quality and age of baseline data used for the specialist report, as well as a description of existing impacts on the site, cumulative impacts of the proposed development and levels of acceptable change. Also required is the duration of the assessment, a description of the methodology adopted in preparing the report (including equipment and modelling used), and a reasoned opinion by the specialist regarding the acceptability of the proposed activity.
In addition, a mine can now undertake small non-substantive amendments – where no environmental impact assessment process is required – to a valid environmental authorisation (EA) or environmental management programme report (EMPR) without appointing an EAP. This allows a mine to effectively manage minor changes to their operations without external input. However, proper mine or project planning, as well as a clear understanding of the EIA regulations, are required to ensure the relevant level of amendment is undertaken.
5. Which changes/s or amendment/s do you believe is going to have the most severe impact for mining companies?
The timeframes associated with the environmental authorisation processes have not changed from the 2014 to 2017 amendment regulations; however, the parameters of the listed activities have changed, as well as the specialist study scope of work requirements. Mining companies need to be aware of the requirements related to new listed activities. In addition, specialist studies require more quantitative base line information as well as more thorough assessment of project or site alternatives.
6. In light of all of this, what has changed for a company wanting to carry out a new development?
With the additional requirements for the specialist studies, additional time will be required to undertake specialist studies. The specialist also needs to be highly competent in their field, as an opinion is required on the acceptability of the proposed activity or activities.
Having completed authorisations in terms of the 2014 EIA Regulations, we have seen challenges arising with the interpretation of the listed activities and amendment processes as part of the day-to-day operational requirement of the mining industry.
Due to the nature of the mining industry and the lessons learned during the environmental authorisation processes undertaken by SRK, it is evident that the EIA regulations are not tailor-made for each specific mine or new development; further amendments and refinements of the environmental legislation may therefore be required. New developments and planning, however, cannot be delayed in anticipation of such amendments. Applicants need to be sufficiently aware of the requirements of the regulations, have a defined project scope, and understand the proposed projects risks and impacts to the biophysical and social environments during the planning and implementation phases.
7. I have read that the amendments appear to give further effect to the implementation of the ‘One Environmental System’. What does this mean? Moreover, can you explain the One Environmental System’ in brief details please.
Often, an environmental authorisation is obtained prior to receiving the project-associated water use licence (WUL) from the Department of Water and Sanitation (DWS), which causes a delay in the execution of a project. The ‘One Environmental System’ strives to achieve an integration of administrative and legislative requirements. Before 8 December 2014, environmental aspects of mining activities were regulated in terms of the MPRDA. Fragmented licensing mechanisms were one of the key binding constraints to realising an aligned environmental authorisation system. In 2008, the ministers responsible for Water and the Environment and for Mineral Resources came to an agreement to align the environmental function of mining.
The regulations regarding the procedural requirements for a water use licence application (WULA) were promulgated in March 2017, and detail the process and timelines associated with a WULA. We understand these timelines to generally align with the EIA regulation environmental authorisation process, thereby supporting the objectives of the ‘One Environmental System’.
Acknowledged: Mining Decisions_Toni Muir
