Environmental Affairs Minister Edna Molewa in November published the proposed amendments to the Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits for comment.

Law firm Cliffe Dekker Hofmeyr (CDH) environmental director Sandra Gore explains that the proposed amendments’ main objective is to allow for pollution control barrier systems required for residue stockpiles and residue deposits (RSRDs) to be determined on a case-by-case basis, based on a risk analysis conducted by a competent person.

She notes that with RSRDs identified as waste under Schedule 3 of the National Environmental Management Waste Act of 2008 (Nemwa), Section 69(iA) entitles the Minister to make regulations regarding the management and control of RSRDs from prospecting, mining exploration or production operations.

The first set of regulations on the control of RSRDs was promulgated in July 2015. Gore remarks that these regulations currently require that RSDS’s pollution control barrier systems be designed in accordance with the national norms and standards that relate to the assessment and disposal of waste to landfill sites, regardless of an RSDS’s pollution potential.

“This was met with widespread criticism from mines, owing to the significantly increased construction costs they would incur and has resulted in litigation being instituted regarding the reasonableness of this requirement,” she points out.

CDH candidate attorney Alecia Pienaar adds that this requirement is “far more onerous” than what was previously prescribed under the Mineral and Petroleum Resources Development Act of 2002 (MPRDA), which governed RSRDs prior to the introduction of the regulations.

“It is also contrary to Nemwa’s objectives, which seek to ensure the provision of reasonable measures for, inter alia, the safe disposal of waste. Clearly, there cannot be a one-size-fits-all approach to the prevention of pollution and ecological degradation,” she states.

Pienaar comments that planning and management techniques must be context driven and well tailored to manage the “peculiar risks” associated with each mining operation and the incidental waste products.

Moreover, Gore points out that the landfill standards are currently required to be applied when a mining company applies for a waste management licence (WML). However, she contends that the Department of Water and Sanitation (DWS) also incorrectly relied on these requirements when considering applications for water use licences (WULs) and would not issue a WUL unless the application included a specification that the pollution control barrier system would be designed in accordance with the landfill standards.

Gore highlights that, if the proposed amendments are enacted, they will prevent the DWS from including “such onerous conditions” for the issue of WULs. She says that, once promulgated, the proposed amendments would apply not only to new RSRD WML applications (WMLAs), but also to any RSRD WMLA which was previously submitted.