Residue stockpiles and residue deposits will no longer be regulated under the National Environmental Management, but by the National Environmental Management Act 107 of 1998 (NEMA).

South African law firm Webber Wentzel elaborated on the possible confusion surrounding the regulation of residue stockpiles and deposits under the existing legal framework. Below is an excerpt explaining this aspect of the proposed Bill:

“The Bill proposes various transitional measures to facilitate this change. Firstly, a waste management licence issued in respect of residue stockpiles and deposits under the Waste Act will remain valid until it lapses, or until it is replaced under NEMA.

Secondly, the regulations regarding the planning and management of residue stockpiles and residue deposits, 2015 (Residue Stockpile and Deposit Regulations) that were published under the Waste Act will remain in force and be deemed to have been promulgated in terms of NEMA.

These are welcomed amendments given the practical difficulties experienced by the mining industry in trying to regulate residue stockpiles and deposits as waste under the Waste Act, particularly in relation to pollution control barrier systems (i.e. liners).

These proposals should assist clients by removing some of the regulatory complexity associated with seeking to backfill pits or underground works with waste rock and/or tailings.

The proposed changes will mean that a waste management licence will no longer be required to authorise residue stockpiles and deposits. Residue stockpiles and deposits will instead be regulated in terms of NEMA through an environmental authorisation and approved Environmental Management Programme (EMPr), which will be approved as part of the larger NEMA environmental authorisation process.

Residue stockpiles and deposits will, however, still be required to comply with the existing Residue Stockpile and Deposit Regulations. We anticipate that these regulations will either be replaced or amended to ensure that they are aligned with the changes proposed by the Bill.

For example, reference to the need for a waste management licence and to the norms and standards for the disposal of waste to landfill will, in our view, no longer be applicable to residue stockpiles and deposits. We also anticipate that further changes will need to be made to the NEMA EIA Regulations and Listed Activities to facilitate this regulatory shift.

The Bill also clarifies that an EMPr which was previously issued in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) is deemed to be an environmental authorisation issued in terms of NEMA.

The changes proposed by the Bill will not only help to streamline the costly and burdensome environmental approval process faced by the mining industry, but will also consolidate the regulation of all residue stockpiles and deposits, including those approved in terms of the MPRDA, under NEMA.”

What does this mean for you?

The Bill is not yet available for public comment, therefore Webber Wentzel has suggested the mining industry keep a close eye on the status of the Bill and whether the current proposed amendments will change.

“The proposed changes to the regulation of residue stockpiles and deposits should be kept in mind when considering the planning and management of one’s residue stockpiles and deposits,” the firm added.