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Non-compliance with environmental laws as reported in the National Environmental Compliance and Enforcement Reports

ARM’s mining operations do not feature in the National Environmental Compliance and Enforcement Reports. However, as the Department of Environmental Affairs’ Environmental Management Inspectors do not have jurisdiction over the environmental or water impacts of mining, this does not mean that the company has not been subject to compliance monitoring and/or enforcement action. The Department of Mineral Resources and the Department of Water and Sanitation are responsible for compliance monitoring and enforcement of environmental and water laws by mining companies. Unlike the Department of Environmental Affairs, thus far neither department has published any information on its compliance monitoring and enforcement action. Both Departments however, in answers to Parliamentary Questions, insist that many inspections take place, many directives and compliance notices are issued, and many criminal prosecutions are instituted.

With a few minor exceptions, the mining companies assessed in Full Disclosure did not refer to compliance monitoring inspections by the Department of Mineral Resources or Department of Water and Sanitation in their shareholder reporting.

The fact that the Departments charged with regulating the sector do not publicise non-compliance findings or enforcement action means that it is impossible to know whether or not the level of disclosure on environmental and water non-compliances by mining companies in their annual reports is accurate.

For more information please see Enforcing the Law: the challenges undermining environmental compliance monitoring and enforcement in South Africa.

However, ARM non-mining facilities – the ferro manganese smelter at Cato Ridge and the ferroalloy smelter at Machadodorp – do feature in the National Environmental Compliance and Enforcement Reports.

Department of Environmental Affairs’ compliance monitoring and enforcement action

Assmang Cato Ridge, KwaZulu Natal
NECER Significant Inspection Findings Further Developments and Status of Enforcement Process
2009
2010
20111 An inspection was carried out in February 2007 and the following findings were noted in the 2011 report:

Significant uncontrolled dust emissions, containing heavy metal manganese.

Serious non-compliance with a hazardous waste site permit.

At least one unpermitted hazardous waste site.

Regarding the enforcement process the following information was provided:

Notice of intention to issue a notice in terms of section 12(2) of APPA was served on the facility in 2007, in relation to exceedances of fugitive emissions (dust and fumes) as well as non-compliance to the APPA permit conditions. A notice of intention to suspend the class H:H permit due to Assmang’s failure to comply with the waste permit conditions to operate a H:H disposal site in terms of section 20(1) of ECA was also issued in 2007. Notice of intention to issue a directive in terms of section 28(4) of NEMA, dated October 2007, due to Assmang’s failure to comply with its general duty of care, to prevent air pollution, promote a healthy working environment for employees & prevent soil & water contamination. Following a review of the representations submitted by the facility in response to the above mentioned enforcement tools, the Department responded as follows:

  • A notice in terms of section 12(2) of APPA, dated 1 April 2008, was issued to the facility.
  • A decision on 6 March 2008 not to suspend the class H:H permit issued by DWAF, provided that certain conditions were strictly adhered to.
  • An enforcement letter, dated 6 March 2008, informing the facility that the decision on whether or not to issue a Section 28(4) directive had been postponed, provided that the facility strictly adhered to the specific conditions contained in the letter.
  • Assmang then sent a request letter, dated 15 December 2009, to the Department to amend a condition contained in the Department’s letter, dated 6 March 2008.
  • After reviewing all the available information the Department responded with a letter, dated 10 March 2010, effecting the amendment provided that the facility adhered to certain conditions.
  • Due to the continuous nature of the conditions contained in the above mentioned documents, the Department, through quarterly meetings, is in a process of monitoring the facility’s movement towards compliance with all environmental legislation.
20122 The following update was provided:

During this financial year (for previous action taken refer to previous reports), Assmang was issued with a WML for the construction of a new slag dump facility, as well as a WML for the capping and closure of the old “historical” slag dump. In a letter dated 27 January 2012, Assmang requested an extension of time to comply with certain conditions contained in the notices and directives issued by the DEA, which was granted. Due to the continuous nature of the conditions contained in the above mentioned documents, the DEA, through quarterly meetings, is in a process of monitoring the facility’s compliance with environmental legislation.

20133 A follow-up inspection had been held in February 2013 which focused on the waste management licences issued to the facility. The following was reported regarding the enforcement process:

During this financial year (for previous action taken refer to previous reports), Assmang was issued with a WML for the construction of a new slag dump facility, as well as a WML for the capping and closure of the old “historical” slag dump. In a letter dated 27 January 2012, Assmang requested an extension of time to comply with certain conditions contained in the notices and directives issued by the DEA, which was granted. Due to the continuous nature of the conditions contained in the above mentioned documents, the DEA, through quarterly meetings, is in a process of monitoring the facility’s compliance with environmental legislation. An inspection was conducted in February 2013. The inspection only focused on the waste disposal sites at the facility (New and old Slag Disposal Sites as well as the Baghouse Dust and Slimes Dams Facilities). Several non-compliances were identified and an inspection report detailing the findings of the inspection is still being finalised.

20144 It was reported that during the follow up inspection in 2013, several non-compliances had been identified. It was reported that:

During November 2013, and prior to the finalisation of the above-mentioned report (the follow-up inspection report), a complaint was received regarding the dumping of slag in a valley situated just outside the boundary of the facility. During March 2014 and upon further investigation by DEA, it was ascertained that the slag in question had been dumped by the facility. Pursuant to these further investigations, DEA issued a notice in terms of section 31H of NEMA and investigations are ongoing.

Assmang Machadodorp, Mpumalanga
NECER Significant Inspection Findings Further Developments and Status of Enforcement Process
2009
2010
2011
20125 An inspection carried out in February 2011 revealed the following non-compliances:

Several non-compliances to conditions on authorisations (APPA permits; Environmental authorisations).

Lack of continuous air quality monitoring as required by Atmospheric Emission Licence.

Operation of slag disposal site without the waste management licence.

Groundwater pollution from unlined slag dump.

Failure to comply with general duty of care in respect of waste management on site.

The status of the enforcement process was as follows:

In the process of developing enforcement strategy. A NEMA section 31H notice has been issued.

20136 The following was reported regarding the enforcement process:

A NEMA Section 31H notice was issued to Assmang in May 2012. Assmang responded to the notice and the inspection report was updated to include the additional information. An enforcement strategy is being developed.

20147 The 2014 report updated the above enforcement process status as follows:

An enforcement strategy has been drafted and DEA is currently in the process of making a decision as to how to proceed further.

In a 2011 news report, it was stated that Assmang’s Cato Ridge operation was still not complying with regulations despite the identification of dust problems at the operation by the Green Scorpions in 2007. Findings in relation to air pollution and waste disposal had been made following the 2007 inspection and the company had been issued with compliance notices. This was reported on in the context of a report that, on the day of the site inspection of Cato Ridge by the Deputy Minister of Environmental Affairs, the company had shut down the crushing and screening plant for “routine maintenance”. The truth of this was questioned by a union official. The union official stated that when the visit of the Deputy Minister had been arranged, a contractor had been called in to sweep away volumes of dust at the operation and the staff canteen had been painted. The news report also contained a statement by a member of Groundwork that while there undoubtedly had been huge improvements at Cato Ridge since 2007, there was concern that metal leaching from Assmang’s old unlined metal disposal site had been disposed of off-site. Finally, the report recorded the statement made by the Deputy Minister to Assmang’s chief executive that Assmang had been the worst company in the country following the 2007 inspection, but that now, “though you are not yet 100 percent, you are aiming there”.8

  1. National Environmental Compliance and Enforcement Reports 2010/2011, at p47-48.
  2. National Environmental Compliance and Enforcement Reports 2011/2012, at p45.
  3. National Environmental Compliance and Enforcement Reports 2012/2013, at p59-60.
  4. National Environmental Compliance and Enforcement Reports 2013/2014, at p42.
  5. National Environmental Compliance and Enforcement Reports 2011/2012, at p45.
  6. National Environmental Compliance and Enforcement Reports 2012/2013, at p61.
  7. National Environmental Compliance and Enforcement Reports 2013/2014, at p47.
  8. http://www.iol.co.za/business/news/assmang-gets-nod-for-trying-to-comply-1.1103821#.VETV7_mUfE4