UPDATE ON IMPLEMENTATION OF THE ONE ENVIRONMENTAL SYSTEM Portfolio Committee on Environmental Affairs Meeting of 30 May 2017

BACKGROUND Ministers of Mineral Resources and Environmental Affairs concluded an agreement on the “One Environmental System” for the country with respect to mining in approximately 2008. The Minister of Water and Sanitation was joined in the agreement in 2012. Ministers adopted an integrated mine environmental management system and sought to align the MPRDA, NEMA, National Environmental Management: Waste Act (NEMWA), National Environmental Management: Air Quality Act (NEMAQA) and National Water Act (NWA). The agreement implied that environmental issues resulting from mining, prospecting, production and related activities will be regulated in terms of the NEMA, whilst Minister of Mineral Resources will become a competent authority in terms of NEMA.

IMPLEMENTATION OF ONE ENVIRONMENTAL SYSTEM Ministers also established an Inter-Departmental Project Implementation Committee (IPIC) consisting of officials from the three Departments. Initial task of the IPIC was to ensure all legislative amendments in the various pieces of legislation were undertaken and to ensure that the administrative processes were reviewed and aligned to ensure that the Minister of Mineral Resources was provided with the necessary legal mandate to perform such function. After 8 December 2014, the task of the IPIC was to monitor the effective and efficient implementation of the one environmental system. Where challenges are uncovered, the IPIC must resolve them. If not, escalate to DG or Ministers forum.

ENVIRONMENTAL AUTHORISATIONS Questions of clarity posed by PC Seek clarity b/c Min of DMR is competent authority to issue Env Authorizations … however DEA Min is appeal authority for authorizations … so one is issuing and one is appeals which is very confusing b/c how can IPIC handle this? Who grants Environmental Authorizations There seems to be confusion on who grants authorization - please clarify? Also confused on ''closure certificates''.

ENVIRONMENTAL AUTHORISATION RESPONSES Mining activities are subjected to an environmental authorisation process in terms of NEMA. Minister of Environmental Affairs prescribes environmental legislative framework. Minister of Mineral Resources is the competent authority for environmental authorisations and waste management licences under NEMA and NEMWA. Minister of Environmental Affairs is the appeal authority in mining- related environmental authorisations. Ensures separation of power during consideration of appeals Closure certificates dealt with by DMR under the MPRDA.

APPEALS Minister of Environmental Affairs is the appeal authority in respect of all mining EAs. 34 appeals received in respect of mine EAs during the 2016/17 financial year. 22 of the appeals have been finalised (13 upheld, 4 dismissed, 3 varied and 2 withdrawn), with the other 12 still in process. Of the 22 appeals finalised, 9 were finalised outside of the prescribed timeframes, as per the National Appeal Regulations, 2014. DMR, as the decision-maker, is required to provide project files and responses on the grounds of appeal within 20 days of submission of the appeal. Compliance with this timeframe has been a challenge. Regular feedback and training provided by the Appeals Directorate to DMR Regional Managers on finalised appeals and challenges discussed at IPIC.

FINANCIAL PROVISIONING REGULATIONS 2015 Why were there so many unresolved issues after the promulgation of the regulations? The NEMA Regulations on Financial Provision departed fundamentally from the MPRDA Regulations, which were based on guidelines and were identified as being inadequate by the ”Review on Effectiveness of Environmental Governance in the Mining Sector” in that they were: considered insufficient for calculating the costs of rehabilitation outdated, too generic, did not include underground or surface water liabilities The financial provision is now based on surveyed inputs the results of which are contained in three plans related to the three phases of rehabilitation.

FINANCIAL PROVISIONING REGULATIONS 2015 (cont) The Regulations are drafted in a manner which prioritizes concurrent rehabilitation and risk reduction. It took time for industry to understand the requirements and many of the issues were identified only when the industry was beginning their implementation of this new regime. As mining and financial provision for rehabilitation of mining impacts is a new area for DEA, the Regulations were overly cautious. DEA did not understand the cost structures associated with the oil industry, it was therefore necessary for in-depth discussion for both parties to understand the complexities. The Regulations were required as a priority once the amendments to NEMA which provided for the “One Environmental System” were promulgated and a regulatory gap would have exposed the department to potential litigation.

FINANCIAL PROVISIONING REGULATIONS 2015 (cont) Did the meeting of the 10 February go ahead and have all issues been resolved? The meeting with stakeholders was held on the 10 February 2017 to address the outstanding matters. Further meetings were held on the 29 & 31 March and 19 April 2017. All inputs were incorporated. The outstanding matters as identified have been clarified. The proposed amendments are being sent formally to the DG of DMR and Treasury for their concurrence after which these will be published for public comment.

FINANCIAL PROVISIONING REGULATIONS 2015 (cont) How does DEA deal with mining companies that gave insignificant contributions below the needed full cost of the mine before the financial provisions came into force? DMR is responsible as this was regulated under the MPRDA. Risk of the State being liable to rehabilitate one of the main reasons for the new Financial Provisioning regime under NEMA.

IPIC The IPIC - task teams are important … the capacitation is important to allow effective implementation. Where are we now? Another DPME, DMR and DEA ''One Environment System'' meeting should be scheduled. What currently guides inter departmental communications? IPIC is chaired by DWS - does the chair rotate? In presentation ''communication'' seems to be a problem - what are you doing now to make it better?

IPIC RESPONSES Initial task of the IPIC was to ensure all legislative amendments in the various pieces of legislation were undertaken and to ensure that the administrative processes were reviewed and aligned to ensure that the Minister of Mineral Resources was provided with the necessary legal mandate to perform such function. This was concluded. After 8 December 2014, the task of the IPIC was to monitor the effective and efficient implementation of the one environmental system. Where challenges are uncovered, the IPIC must resolve them. If not, escalate to DG or Ministers forum. Some Task Teams continue to meet as and when required.

IPIC RESPONSES (cont) IPIC strives to meet quarterly Ensures inter-departmental communication Chairing is rotated between DEA, DMR and DWS Communication also occurs through MINTECH Working Groups

COMPLIANCE AND ENFORCEMENT UPDATE Coordination: Since 2015, DMR has been included as a standing member of MINTECH WGIV (Compliance and Enforcement). IPIC Task Team on Compliance and Enforcement: Workplan developed in 2016/2017. Roles and responsibilities document in draft format. Directive issued by chair(s) of the IPIC to defer C&E matters to the task team. Legislative developments: Amendment to EMI Regulations (soon to be published for implementation) will align the administrative requirements of EMIs and EMRIs in relation to training, grading and identification of compliance and enforcement officials.

COMPLIANCE &ENFORCEMENT (Update) Legal Mandate: Western Cape High Court judgement of Mineral Sands Resources vs Magistrate Vredendal and Others (Case 18701/16): Confirmed the exclusive legal mandate of DMR/EMRIs in relation to listed activities directly related to mining as contemplated in section 24C(2A) of NEMA; Confirmed the ongoing mandate of EMIs in relation to non-compliances with the NEM: Integrated Coastal Management Act, notwithstanding that it may have occurred within a mining area. Same applicable to other SEMAs: biodiversity, protected areas, air quality. Referrals of complaints related to mining activities ito S31D (4) – (9) Several complaints have been referred from the EA Ministry to the MR Ministry in terms of section 31D (6) of NEMA requesting further consultation – awaiting a response to these referrals.

COMPLIANCE &ENFORCEMENT (Update) – Mineral Sands Resources (cont.) Different legal interpretations in respect of the transitional provisions surfaced over a period of time Prior to 8 December 2014 -Mining Minister’s decision to approve an Applicant’s Mining right and EMP in terms of the Mineral and Petroleum Resources Development Act constituted the environmental authorization for the mining activities for which it was approved. NEMA was amended by Act 62 of 2008 and by Act 25 of 2014 . The amended EIA Regulations and the new Listing Notices, which accommodated the inclusion of mining among the listed activities for purposes of NEMA. Amendment also clarified that the Mining Minister is identified as the competent authority for granting environmental authorisations where the listed activity directly relates to mining.

COMPLIANCE &ENFORCEMENT (Update) – Mineral Sands Resources (cont.) Section 12(4) of NEMA -A Mining EMP approved prior to 8 December 2014 in terms of the MPRDA is to be regarded as an EMP approved in terms of section 24N of NEMA. s 12(2) of Act 62 of 2008 and regulation 53 of the 2014 EIA Regulations provided that the application to amend the environmental authorisation and NEMA EMP were to be dealt with as if NEMA and the 2010 EIA Regulations had not been amended. Accordingly the MEC remained the competent authority to deal with those two pending applications. Where a mining company undertakes a listed activity beyond the scope of the activities for which it obtained an authorisation, it needs to apply for an amendment or additional environmental authorisation. An amended Mining EMP does not preclude a mining company from obtaining an environmental authorisation if it undertakes a listed activity - An amended Mining EMP cannot authorise a listed activity that requires a further environmental authorisation.

COMPLIANCE &ENFORCEMENT (Update) – Mineral Sands Resources (cont.) An amendment to the Environmental Impact Assessment Regulations, which commenced on 7 April 2017 further clarifies the transitional provisions.

AIR QUALITY How are air quality impacts addressed by DMR? The impact on air quality is considered as part of the environmental impact assessments, which are considered by DMR. Atmospheric emission licences related to mining are issued by DEA in terms of the National Environmental Management: Air Quality Act, 2008.

WASTE Training on issuing of Waste Management Licences have been undertaken as part of the Capacity Task Team activities. The Department has prioritised further training on waste management for new officials that have since joined the DMR and DWS after the initial training was conducted. The Mine Residue Deposits and Stockpiles Regulations have been developed and published for implementation. The Schedule 3 on the list of waste sources is being considered for amendments as part of NEMLA 4 process. The Regulations to Exclude some Waste Streams or a portion of a waste stream from being waste are being considered for publishing for public comments.

OTHER MATTERS Closure, MPRDA Amendment Bill, ownerless mines, DMR capacity, etc. DMR to respond The Mineral and Petroleum Resources Development Amendment Bill and the amendments to the Mineral and Petroleum Resources Development Regulations, 2004 are not promulgated yet. Regulations Regarding the Procedural Requirements for Water Use Licence Applications and Appeals were promulgated on 24 March 2017.