21 May 2019

South Africa: Public Comment Sought On Mining Regulations

The public has 45 days to comment on the further amendments to the Financial Provisioning Regulations for the rehabilitation and remediation of environmental damage caused by the prospecting, exploration, mining or production operations.

Minister of Environmental Affairs, Nomvula Mokonyane, published further amendments to the regulations for the rehabilitation and remediation of environmental damage caused by the prospecting, exploration, mining or production operations for public comment.

The amendment regulations have been published in terms of the National Environmental Management Act (NEMA).

The proposed amendments have been effected to provide more clarity to the sector, to confirm that funds set aside for financial provisioning are for use by the Minister of Mineral Resources, should a holder not fulfil their rehabilitation commitments, and to facilitate the actual closure of mining operations.

"The 'One Environmental System' for mining came into existence in December 2014 initiating the streamlining of the licensing processes for mining, environmental authorisations and water use. The system represents government's commitment to improve the ease of doing business and further enhance South Africa's global competitiveness as a mining investment jurisdiction," said the department on Tuesday.

Under the system, the Minister of Mineral Resources issues environmental authorisations and waste management licences in terms of the NEMA and the National Environmental Management: Waste Act, 2008 respectively for mining and related activities.

The Minister of Environmental Affairs will be the appeal authority for these authorisations.

In November 2015, in line with the system under which all environmental matters pertaining to mining are to be regulated in terms of the environmental legislation, the Financial Provisioning Regulations were published in terms of the NEMA.

The purpose of these regulations are to make financial provision for costs associated with the remediation and rehabilitation of environmental impacts associated with mining activities.

As a result of continued discussion with stakeholders, the Minister published proposed amendments to the regulations on 10 November 2017, for public comment.

As part of the system, the requirements for financial provisioning for rehabilitation in the mining sector were transferred from the Mineral Petroleum Resources Development Act (MPRDA) to NEMA through the Financial Provisioning Regulations, as of November 2015.

These regulations, which are implemented by the Minister of Mineral Resources, regulate the manner in which holders and applicants of various types of mining rights and permits must provide for and execute rehabilitation of the environmental impacts from mining activities.

Further amendments

In consultation with the Department of Mineral Resources, the South African Revenue Services, National Treasury and the Department of Water and Sanitation, several proposed amendments were made to the regulations in November 2017 and gazetted for public comment.

Based on the comments and inputs received from various sectors, further amendments have been proposed.

Some of the more significant proposed changes being considered are:

- the introduction of a specific obligation of the holder to rehabilitate and remediate environmental damage;

- the identification of circumstances under which the Minister of Mineral Resources, may access the financial provision of a holder;

- clarification that the financial provisioning does not include funding for an incident;

- the requirement for the funds set aside for residual and latent impacts to be ceded to the Minister upon the issuing of a closure certificate;

- the strengthening of the provisions for the holder to disclose information;

- the ability for a holder to claim against their financial provision 10 years or less before closure in order to facilitate closure under strict conditions;

- the offences have been broadened; and

- the content of the various plans for the calculation of financial provisioning have been amended to provide more clarity and to align with the calculation of the financial provision.

Written representation or objections can be sent by post to the Department of Environmental Affairs; Director-General; Attention: Ms Dee Fischer; Private Bag X447; Pretoria, 0001.

Representation can be delivered by hand at Reception, Environment House, 473 Steve Biko Road, Arcadia, Pretoria and by email on Dfischer@environment.gov.za.

Any inquiries in connection with the notice can be directed to Ms Dee Fischer at 012 399 8843.

Interested parties can view the gazette on https://www.environment.gov.za/sites/default/files/gazetted_notices/nema107of1998_proposedregulations_financialprovision.pdf.

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