Full Disclosure 2016

Summary of updated findings

In Full Disclosure 2015, the CER commended Amplats for the level of disclosure of its environmental impacts and non-compliances in its annual reports, which was higher than some of the other companies that formed part of our assessment.

Subsequent to the release of Full Disclosure 2015, the 2014/2015 NECER was published, and it refers to inspections conducted by the DEA at Amplats’ Polokwane Smelter in January 2011 and August 2014.

The 2015 NECER records that the following non-compliances were discovered during the 2011 inspection:

• Non-compliances with the conditions stipulated in facility’s waste permit issued in terms of section 20 ECA (Permit No: 12/9/11/118) for the facility’s H:H slag stockpile disposal site;
• various non-compliances in relation to the facility’s failure to comply with its general duty of care in respect of waste management and storage;
• activities being undertaken on site which may cause serious and significant harm to the environment and the facility’s failure to take reasonable measures to prevent such harm;
• failure to report emergency incidents;
• failure to comply with provisions of the NWA and the undertaking of water uses without a water use licence required in terms of section 21 of the NWA.¹

The 2015 NECER also reports that, based on these findings, the DEA issued the Polokwane Smelter “with a notice of intention to issue a compliance notice in terms of section 31L of NEMA”, “pre-directives in terms of section 31A ECA” and “section 28(4) of NEMA directives” on 5 November 2012.²

On 21 October 2016, the CER wrote to Amplats, noting our concern that there was no reference to these inspections, findings or enforcement action in Amplats’ annual or sustainable development reports over the relevant period.

On 8 November 2016 Amplats’ CEO, Mr Chris Griffith, responded to the CER. Mr Griffith’s explanation for Amplats’ failure to reference these inspections, findings and enforcement action in its reports is as follows:

Amplats acknowledges the fact that a pre-compliance notice was issued in 2012 to the Polokwane smelter and given that the notice issued was simply a pre-compliance notice and does not represent any definite findings and that it is subject to a further process of regulatory discussion and engagement with the Regulator [sic]. AAP’s [Anglo American Platinum’s] policy is to only publicly report on definitive findings, once issued by the Regulator. To date these final findings have not been issued.

It is clear from the NECER that the findings of the inspection were definitive. The NECER also indicates that the section 28(4) NEMA directives were final directives. In relation to the pre-compliance notice, the purpose of such a notice is to provide an opportunity to a company, where reasonable grounds exist that an environmental law or an authorisation issued under that law has been breached, to make representations as to why a compliance notice should not be issued on the terms proposed. The findings of the inspection as reported in the NECER make it clear that such reasonable grounds existed, and no decision on any representations Amplats would have made, or the “process of regulatory discussion and engagement”, could alter the findings of the inspection.

In any event, companies like Amplats will in future be required to disclose far more detailed information about environmental non-compliance, as a result of the inclusion in the King IV Report™ of the following requirement under Principle 13, “Compliance governance”:

Details of monitoring and compliance inspections by environmental regulators, findings of non-compliance with environmental laws, or criminal sanctions and prosecutions for such non-compliance should be disclosed.³

Amplats was one of the mining companies called to submit evidence to the South African Human Rights Commission’s National Hearing on the Underlying Socio-economic Challenges of Mining-Affected Communities in South Africa, held in September and November 2016.