The National Environmental Management Laws Amendment Bill, dubbed NEMLA IV, is set to pave the way for a ground-breaking new specialist rehabilitation industry to emerge in South Africa.

This is according to Gary Rapson and Kirsty Kilner, experts in environmental law at Webber Wentzel.

The Bill, which was passed by the National Assembly in late 2018 and is currently being considered by the National Council of Provinces, proposes to amend the National Environmental Management Act, 1998 (NEMA) as well as a number of other specific environmental laws, including the Water Act, 1998, the Waste Act, 2008 and the Air Quality Act, 2004.

Rapson and Kilner note that many of the proposed amendments, if implemented in their current form, will provide much needed clarity for the mining industry, particularly in relation to the regulation of financial provisioning and mine rehabilitation.

“If cleverly implemented, this could allow mining companies to reduce the amount of money that is required to be set aside for final rehabilitation,” Rapson explains.

Redefining rehabilitation

According to Rapson and Kilner NEMLA IV will also introduce definitions for commonly used terms such as mitigation, remediation, rehabilitation, and residual and latent impacts.

“While definitions generally assist in interpreting the law, references to “reversing” environmental damage could be problematic.  Any technical specialist will tell you that reversing environmental damage is often simply not possible,” the pair says.

“Under NEMLA IV, the quantum of financial provision is required to be calculated by a specialist environmental consultant, reviewed every three years and audited every five years.  Audits will also have to be signed off by the CEO,” they add.

Although the proposed changes to NEMA cannot address environmental problems arising from past mining activities, such as asbestos and acid mine contamination, the amendments will help to avoid similar mistakes being repeated in the future.

A new kind of closure

The pair points out that the proposed amendments also create an exciting opportunity for asset transformation in the mining sector, signalling a shift away from traditional mine closure ideals.

“Previous legislation required mines to return the impacted land to its pre-mining state, an ideal that is far-fetched and impractical, particularly in the case of opencast pits.”

NEMLA IV recognises these practical difficulties and allows mining companies to propose a sustainable closure solution.

In support of this shift, NEMLA IV allows for the use of specialist rehabilitation companies as a new kind of financial vehicle to be used for financial provisioning.

“In our view, the implementation of the changes proposed by NEMLA IV will pave the way for a ground-breaking new specialist rehabilitation industry to emerge in South Africa,” the pair notes.

“The result is that mining companies may one day be able to use these specialist rehabilitation companies to assist in implementing sustainable and transformative closure solutions.  These specialist rehabilitation companies may also be able to take transfer of latent and patent liabilities to enable mining companies to obtain closure certificates,” they conclude.