Full Disclosure 2016

Environmental non-compliances reported by affected communities, the media, & NGOs

2016 update

Proposed new Belfast mine

It has recently been reported that environmental challenges threaten Exxaro’s plans to start construction of its proposed new Belfast coal mine in 2016. A news report entitled “Environmental Issues Delay Exxaro’s Plans”¹ published on 5 September 2016 states:

The Federation for a Sustainable Environment (FSE) and a cherry farmer, Highlands Organics, have challenged Exxaro’s mining licence, water-use licence, rezoning permission and environmental authorisation for [the] Belfast mine, which will be adjacent to the cherry farm.

Highlands Organics has raised procedural problems with the local municipality’s approval of Exxaro’s rezoning application for the Belfast site, and has challenged the environmental authorisation, on the grounds that the harmful effects of the mine had not been properly taken into consideration. Highlands Organics is owned by Koos Pretorius, a director of the FSE. It is the only producer of cherries in Mpumalanga, an exporter and a supplier to Woolworths and other local markets. It argued that the effect of an open cast coal mine 300m from its orchards would be “devastating”.

Its UK buyers would not buy cherries affected by the dust and water pollution from a neighbouring coal mine. The farm employs about 68 people permanently and more than 150 people seasonally.

These circumstances are an excellent example of the threat posed by poorly regulated coal mining in Mpumalanga to food security and long-term local employment, as fully described in the CER’s 2016 report, Zero Hour: Poor Governance of Mining and the Violation of Environmental Rights in Mpumalanga.²

Proposed independent coal-fired power station to be supplied by Thabametsi mine

The environmental authorisation granted for a proposed independent coal-fired power station, to which Exxaro would supply coal, has also been challenged by environmental groups. Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights, has applied to the High Court in Pretoria to set aside the environmental authorisation granted for the Thabametsi coal-fired power station. The coal for this proposed project would come from Exxaro’s Thabametsi mine.³

ELA’s challenge to the grant of the environmental authorisation is based, inter alia, on the failure of the environmental impact assessment to consider the climate change impacts of the proposed power station. ELA has asked the court to review and set aside the Department of Environmental Affairs’ decision to authorise the proposed power station, as well as the Minister of Environmental Affairs’ March 2016 decision to uphold that authorisation on appeal. Despite upholding the authorisation on appeal, the Minister also required Thabametsi to conduct a climate change impact assessment.

Thabametsi was recently announced as one of two “preferred bidders” in the Department of Energy’s coal-baseload independent power producer procurement programme (CBIPPPP), which aims to procure 2500MW from coal-fired power stations. More than 10 proposed coal-fired power stations, hoping to sell their electricity to Eskom under the CBIPPPP, have submitted applications for environmental authorisations. The CER, on behalf of partner organisations groundWork, the South Durban Community Environmental Alliance and ELA is challenging the environmental authorisations issued to three of the proposed power stations – Thabametsi included.

The court papers highlight the significance of the impacts of climate change – particularly for a water-scarce country such as South Africa, where vulnerable and poor communities are likely to be worst affected – and the need for a committed response from SA to these impacts, particularly in light of the country’s commitments made by signing the Paris Agreement on climate change.⁴ In terms of the CBIPP Request for Proposals legal qualification criteria, a preferred bidder is required to reach “commercial and financial close” within 6 months of the announcement, i.e. in this case, by April 2017. This means that all necessary authorisations must be in place, and the preferred bidder must also be able to prove that any pending litigation has been resolved. This means that, if the ELA challenge to the Thabametsi environmental authorisation has not been resolved by April 2017, the Department of Energy has the discretion to revoke the status of Thabametsi as a preferred bidder.

Tshikondeni coal mine

As reported in the December 2014 edition of Exxaro’s lalela publication, 30 September 2014 was the last day that coal was extracted from underground and that employees worked their regular shifts at the Tshikondeni mine.⁵ The Tshikondeni mine supplied coal exclusively to ArcelorMittal, and in exchange, ArcelorMittal funded the mine’s running costs.⁶

In August 2015, the CER submitted a PAIA request to Exxaro on behalf of the Mutele Mining Committee.

The Mutele Mining Committee is a community based committee representing the residents of three villages, namely Mutele B, Mukoma and Bileni. The residents claim that throughout its operational lifespan the Tshikondeni coal mine has had a negative impact on their health and wellbeing, particularly insofar as blasting activities have resulted in damage to community houses and widespread dust pollution.

In the PAIA request, the CER asked for the following records relating to the Tshikondeni coal mine:

1. The most recent approved Environmental Management Programme (EMPR).
2. The most recent approved Social and Labour Plan (SLP).
3. The most recent compliance reports for the EMPR and the SLP.
4. Any reports prepared by or on behalf of Exxaro regarding damage to community houses as a result of mining at Tshikondeni.
5. A copy of the mine closure plan prepared by Exxaro during 2012.

While Exxaro provided access to most of the records requested, it refused to provide access to the SLP and compliance reports for the SLP on the grounds that:

the mine’s SLP contains some information regarded as confidential and not of relevance to the persons the CER is representing and hence access to the mine approved SLP and compliance report to the SLP are denied. The mine’s SLP covers various other villages/communities around the mine including Mutele A and B and Exxaro will therefore only consider a request which explicitly refers to matters or parts of the SLP which specifically relates to the Mutele Mining Committee.

It is impossible to identify which sections of the SLP deal with the communities represented by the Mutele Mining Committee without access to the document. SLPs are vital documents for affected communities. The information contained in SLPs sets out the obligations of mining companies towards the communities living in and around their operations. Without access to SLPs, community members cannot ensure that mining companies are held to their social obligations.

In response to the PAIA request, Exxaro sent the CER a report titled “Blasting Impact Study On Adjacent Mutele B Community”. This report was commissioned by Exxaro and prepared by Blast Management and Consulting in 2011. It indicates that “the air blast levels are much too high and unfortunately the drilling and blasting information reviewed indicates that there is some sense of carelessness with regards to the blasting operations.”

Exxaro also sent the CER a copy of its “Closure Environmental Management Plan for Tshikondeni Coal Mine”, prepared by Digby Wells Environmental in 2014. This plan sets out the closure obligations in relation to the Tshikondeni coal mine. According to members of the Mutele Mining Committee, many of these obligations have not been met, and the community has not been consulted regarding these initiatives. Despite the fact that closure obligations have reportedly not been met, ArcelorMittal reports in its 2015 Financial Statements that “the sale of the mine assets at the Tshikondeni mine were used to settle the closure costs of the mine and the balance of the provision was released in the year”.⁷

Full Disclosure 2015

Various reports detail alleged destruction of wetlands by Exxaro, both at Weltevreden Farm⁸ and at Mooifontein⁹ in Mpumalanga. In early 2014, the non-profit organisation the Federation for a Sustainable Environment reported on illegal mining which had been and probably was still being carried out by Exxaro at Weltevreden. In 2012, the Department of Water Affairs had ordered Exxaro to cease mining in the area, as it was doing so without a water use licence. Exxaro then appealed the Department of Water Affair’s decision to the Water Tribunal. However, the subsequent disbandment of the Tribunal prompted Exxaro to apply to the High Court on the basis that the disbandment left them without the legal recourse of appeal. The High Court granted Exxaro’s application and set the directive aside on the basis of the absence of the Tribunal. The Federation for a Sustainable Environment report stated that Exxaro itself recognised that mining would destroy the wetland as reflected by the following statement on Exarro’s website:

Probable impacts on the wetland within the boundaries of Block OWM include the total removal of the soil and vegetation, and thus the permanent destruction of the existing wetlands and the associated habitats for fauna and flora. If the wetlands are removed, the likelihood of successfully rehabilitating and restoring the wetlands subsequent to mining is very low; thus, the impact would be permanent.

Destruction of the wetlands will take place due to opencast mining activities.¹⁰

Exxaro published a statement refuting the allegation that it was mining the wetland without permission, detailing the permissions held by it permitting mining in the relevant area. The publication included the above statements relating to destruction of the wetland and also noted that mining was to recommence in the area.¹¹ The Federation for a Sustainable Environment however claimed that the co-ordinates of the area covered by the water use licence held by Exxaro excluded the wetland.

Exxaro has also been implicated in investigations carried out by the Public Protector relating to water pollution caused by mining activities. It was reported in 2014 that a criminal complaint had been laid against the company by the Federation for a Sustainable Environment for alleged violations of environmental laws.¹²

In a parliamentary question by a member of the Inkatha Freedom Party to the Minister of Water and Environmental Affairs in 2010, it was queried how many mining companies had contravened the conditions of their water licences and what penalties had been handed out as a result. The Minister responded with a list of mines, which included an Exxaro mine in Limpopo (the name of the mine is not provided). It was stated that no penalties were imposed as the mine took remedial action. The pollution control dam had been overflowing and the quantity was reduced by a recycling method.¹³

A 2012 news report stated that Exxaro’s Glisa mine had been criminally charged by the Department of Water Affairs for contravening the National Water Act. Exxaro’s offences included the storage of dirty water in an open pit rather than in a pollution control dam, which could lead to pollution of ground water, operating without a water use licence and diverting natural water courses without authorisation.¹⁴ A 2012 response by the Minister of Water and Environmental Affairs to a question posed by a member of the Democratic Alliance also noted that a criminal case had been opened against Exxaro’s Glisa operation.¹⁵ This was further confirmed in response to a PAIA request submitted by the CER to the Department of Water & Sanitation for records indicating the names of mines and industrial facilities in respect of which criminal dockets have been opened with the SAPS for failure to comply with the National Water Act. Exxaro’s Glisa operation was on the list received from the Department of Water & Sanitation, indicating that a criminal investigation had been opened against Exxaro in 2012 for “use of water otherwise than as permitted under this Act [National Water Act]” and for “failure to comply with a directive issued under section 19, 20, 53 or 118”.

As of 25 July 2014, Glisa colliery, Arnot colliery and Durnacol mine did not have Water Use Licences. The authorisation of the Glisa colliery licence was said to be in process, but Arnot colliery and Durnacol mine had not yet applied for the authorisations.¹⁶ Exxaro has a history of non-compliance with the obligation to obtain water use licences.¹⁷

Other relevant media reports include reports on community opposition to Exxaro operations due to the potential for significant negative environmental effects.¹⁸