ROAD PAVEMENTS FORUM

ROAD PAVEMENTS FORUM

Legal implications when using borrow pits and mobile crushers for the production of road material.

22 November 2005

Alan CluettEnvironmental Consultant

Holcim

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Road Pavement Forum 2005 21.04.23ASPASA

Content

Some quarrying statistics

Some Definitions

Legal trends in South Africa

Extracts from South African Law

Other aspects Quality, Environmental Programmes, CSR

Contractor responsibility

Authority Responsibility

Conclusions

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Some quarrying statistics

Period 2004

DME aggregate volumes @ 44.8 million tons; (“declared

volumes”)

DME estimate this reflects 75% of total volume; (~ 60 million for total market)

DME place industry employment at 4125;

ASPASA estimates aggregate volumes at ~ 90mio tons; (based on cement sales)

Limestone Aggregate Sector (LAS) ~R6 billion; (5th behind Gold, Platinum, Diamonds and Coal)

Some 4000 derelict and ownerless mines in SA.

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Some Definitions

Aggregate - different sized stone used in the building, construction and road-making industries.

Sand - finer aggregate components, usually < 6mm . Sand is further classified into – Natural Sands derived from, for example, rivers or decomposed rock deposits

e.g. granite; and, Crusher sands derived from the aggregate crushing process .

Crushing plant - the production facility associated with the quarry, comprising various crushing units linked via conveyors and screens. The crushing plant is the on-site beneficiation unit producing aggregate.

Quarry - A surface mine from which rock is mined and processed into aggregate.

Sustainable Development - The most common definition is that of the 1990 Bruntland Report - “Our Common Future”, Our Common Future”, i.e.

“Sustainable Development is development that meets the needs

of the present without compromising the future generations to meet their own needs”

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Legal Trends in South Africa

“Old order” legislation formed and implemented in the era of economic sanctions (political) -

Prior to 1994

National Road Act (1971);

Advertising on Road and Ribbon Development Act (1940); Water Act (1957); Explosives Act (1965); Atmospheric Pollution Prevention Act (1965);

Conservation of Agricultural Resources Act (1983);

Environment Conservation Act (1989); Minerals Act (1991);…..

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Legal Trends in South Africa

“New order” legislation formed and implemented to work in the post sanctions era of environmental sanction The Constitution of the Republic of South Africa (1996); Mine Health and Safety Act (1996); National Water Act (1998); National Environmental Management Act (1998); National Forest Act (1998); National Heritage Resources Act (1998); National Veld and Forest Fire Act (1998); Mineral and Petroleum Resources Development Act (2002); Air Quality Act (2004).

Post 1994

In total there are more than 27 Acts of Parliament, numerous Provincial Ordinances and a number of Local government and By-laws with environmental requirement.

Section 35 Criminal Procedure Act, 1977

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Extracts from South African Legislation

24. Environment

Everyone has the right -

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Constitution of the Republic of South Africa.(1996).

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Extracts - Environment Conservation Act (1989) R.1182 - 5 September 1997

21. Identification of activities which will probably have detrimental effect on environment including

(a) Land use and transformation;

(c) resource removal, including natural living resources;

22. Prohibition on undertaking of identified activities

(1) No person shall undertake an activity identified in terms of section 21 (1) or cause such an activity to be undertaken except by virtue of a written authorisation ….

26. Regulations regarding environmental impact reports….

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Extracts - Environment Conservation Act (1989)

Part VII - Offences, Penalties and Forfeiture

29. Offences and penalties

(4) Any person who contravenes a provision of section … 22(1) … or fails to comply ….shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or to imprisonment for a period not exceeding 10 years …..

(7) In the event of a conviction…. the court may order that any damage to the environment resulting from the offence be repaired by the person so convicted, to the satisfaction of the Minister

(8) If within a period of 30 days….(the “authority”) may itself take the necessary steps to repair the damage and recover the cost thereof from the person so convicted.

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Extracts - National Environmental Management Act (107/1998)

24. Environmental authorisations

24E. Minimum conditions attached to environmental authorisations

24F. Offences relating to commencement or continuation of listed activity

(1) Notwithstanding the provisions of any other Act, no person may commence an activity listed in terms of section 24(2)(a) or (b) unless the competent authority has granted an environmental authorisation ….

24G. Rectification of unlawful commencement or continuation of listed activity

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Extracts - National Environmental Management Act (1998)

28. Duty of care and remediation of environmental damage

(1) Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, …

(7) Should a person fail to comply, or inadequately comply, with a directive …., the Director-General or provincial head of department may take reasonable measures to remedy the situation.

(8) …. may recover all costs incurred … from any or all of the following persons -

(a) any person who is or was responsible for, or who directly or indirectly contributed to, the pollution or degradation or the potential pollution or degradation;

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(9) The (Authority) may, claim proportionally from any other person who benefited ….; and , (11) If more than one person is liable, the liability must be apportioned among the persons concerned according to the degree to which each was responsible…

29. Protection of workers refusing to do environmentally hazardous work

(1) Notwithstanding the provisions of any other law, no person is civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having refused to perform any work if the person in good faith and reasonably believed at the time of the refusal that the performance of the work would result in an imminent and serious threat to the environment.

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34D. Forfeiture of items

(1) The court convicting a person of an offence in terms of this Act may declare any item, including but not limited to any specimen, container, vehicle, vessel, aircraft or document that was used for the purpose of, or in connection with the commission of the offence and was seized under the provisions of this Part, to be forfeited to the State.

(2) The provisions of section 35 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply to the forfeiture of any item in terms of subsection (1), subject to such modifications as the context may require

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R.765 - 25 June 2004

…..Activities that may not commence without Environmental Authorisation from the competent authority

Schedules

Definitions

The following definitions apply to these schedules -

"industrial mineral" means aggregate,……, manufactured sand from hardrock, manufactured sand from waste dump, stone aggregate from waste dump, gravel stone aggregate,…..

"silica" means building sand, concrete sand, crusher sand, filling sand, ..., silcrete or silica sand;

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Schedule 3: Activities that require Initial Assessment

The activities listed in this schedule may not be undertaken prior to the issuing of an environmental authorisation by the competent authority. …

4.The mining, quarrying, prospecting, extraction or production, including associated structures and the extension of existing operations, of -

(a) industrial minerals;...

(d) silica;...

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Extracts - National Water Act (1998)

19 Prevention and remedying effects of pollution

(1) An owner of land, a person in control of land or a person who occupies or uses the land on which -

(a) any activity or process is or was performed or undertaken; or

(b) any other situation exists, which causes, has caused or is likely to cause pollution of a water resource, must take all reasonable measures to prevent any such pollution from occurring, continuing or recurring.

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Extracts - National Water Act (1998)

(5) Subject to subsection (6), a catchment management agency may recover all costs incurred as a result of it acting…. jointly and severally from the following persons:

(a) any person who is or was responsible for, or who directly or indirectly contributed to, the pollution or the potential pollution;

(d) any person who negligently failed to prevent -

(i) the activity or the process being performed or undertaken; or

(ii) the situation from coming about.

(6) The catchment management agency may ... recovery costs ... from any other person who, in the opinion of the catchment management agency, benefited from the measures undertaken under subsection (4), to the extent of such benefit.

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Extracts - Mineral & Petroleum Development Act (2002)

1. Definitions

In this Act, unless the context indicates otherwise -

"mine", when used as a verb, means any operation or activity for the purposes of winning any mineral on, in or under the earth, water or any residue deposit, whether by underground or open working or otherwise and includes any operation or activity incidental thereto;

"mineral" …. includes sand, stone, rock, gravel, clay, soil and any mineral occurring in residue stockpiles or in residue deposits,…

"processing", in relation to any mineral, means the winning, extracting, …., crushing, screening, washing, reduction;…

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4. Interpretation of Act

(4) No person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral ... or commence with any work incidental thereto on any area without -

(a) an approved environmental management programme or approved environmental management plan, as the case may be;

(b) a reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right or production right, as the case may be; ...

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22. Application for mining right

(1) Any person who wishes to apply to the Minister for a mining right must lodge the application -…….

39. Environmental management programme and environmental management plan

(1) Every person who has applied for a mining right in terms of section 22 must conduct an environmental impact assessment and submit an environmental management programme within 180 days of the date on which he or she is notified by the Regional Manager to do so.

40. Consultation with State departments

41. Financial provision for remediation of environmental damage

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43. Issuing of a closure certificate

44. Removal of buildings, structures and other objects

45. Minister's power to recover costs in event of urgent remedial measures

(1) If any prospecting mining reconnaissance or production operations cause or results in ecological degradation, pollution or environmental damage which may be harmful to the health or well being of anyone and requires urgent remedial measures the….

46. Minister's power to remedy environmental damage in certain instances

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98. Offences

Any person is guilty of an offence if he or she - (a) contravenes or fails to comply with -

(vi) any directive, notice, suspension, order, instruction or condition issued, given or determined in terms of this Act;

(viii) any other provision of this Act;

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99. Penalties

Fines range from R10 000 to R500 000 and imprisonment for various contravention's, with -

(g) in the case of any conviction of an offence in terms of this Act for which no penalty is expressly determined, to a fine or to imprisonment for a period not exceeding six months or to both a fine and such imprisonment; and

101. Appointment of contractor

If the holder of a right or permission appoints any person or employs a contractor to perform any work within the boundaries of the reconnaissance, mining, prospecting, exploration, production or retention area, as the case may be, such holder remains

responsible for compliance with this Act.

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Summary of legal requirement

Constitution of the Republic of South Africa

Supreme legislation, S24 - the right to a “clean & healthy environment

Environment Conservation Act

Identified Activities - Mining, Authorisations, EIA or Initial Assessments

National Environmental Management Act

S28 - “Duty of Care”, Responsibility & cost recovery

National Water Act

S19 - Prevention of Pollution of water resource

Mineral & Petroleum Resources Development Act

S4 No prospecting an approved EMP, S22 - Apply for mining “permission”, S39 - Must have approved EMP for mining, S41 - Financial Provisions, S45 & S46 Damage and recovery of costs!

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Other Considerations

Quality - Fresh vs. weathered, ACV, 10% Fact, PV…

Product range - Limited product range

Capacity - Plant production rates, Delivery

Full community cost - Not leaving a liability for the community

Environmental protection - EMP’s, Rehabilitation funds, Closure plans

Contribution to community - Community development and Social responsibility

Stable workforce - Long term employment, Pensions, Medical Aid, training

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Weathered Dolerite Fresh Dolerite

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Other Considerations

ASPASA About Face Environmental Programme

Operation 1998 1999 2000 2002 2004Coedmore 5 Fish Eagles 5 Fish Eagles Showplace Showplace ShowplaceEikenhof 4 Fish Eagles 5 Fish Eagles 4 Fish Eagles 4 Fish Eagles 5 Fish EaglesFerro 4 Fish Eagles 5 Fish Eagles Showplace Showplace ShowplaceJukskei 3 Fish Eagles 4 Fish Eagles 3 Fish Eagles 5 Fish Eagles 5 Fish EaglesLadysmith 2 Fish Eagles 3 Fish Eagles 4 Fish Eagles 4 Fish Eagles ShowplaceNewcastle 5 Fish Eagles 5 Fish Eagles Showplace Showplace ShowplaceOlifantsfontein 2 Fish Eagles 3 Fish Eagles 4 Fish Eagles 4 Fish Eagles 5 Fish EaglesPeninsula 5 Fish Eagles 5 Fish Eagles Showplace 5 Fish Eagles ShowplacePietermaritzburg 4 Fish Eagles 4 Fish Eagles 5 Fish Eagles 5 Fish Eagles 5 Fish EaglesRheebok 2 Fish Eagles 4 Fish Eagles 4 Fish Eagles 4 Fish Eagles 5 Fish EaglesRoodekraans 4 Fish Eagles 4 Fish Eagles 4 Fish Eagles 5 Fish EaglesRooikraal 3 Fish Eagles 4 Fish EaglesUmlaas Road 2 Fish Eagles 2 Fish Eagles 2 Fish Eagles 5 Fish Eagles 5 Fish EaglesVerulam 3 Fish Eagles 4 Fish Eagles Showplace Showplace ShowplaceVogels 2 Fish Eagles 4 Fish EaglesZeekoewater 4 Fish Eagles 4 Fish Eagles 3 Fish Eagles 5 Fish Eagles 5 Fish Eagles

Blocked for the sake of

sensitive viewers

Continuous Environmental Performance

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External multi-disciplinary audit

DME EMEM Awards 2002

OperationPosition in

South AfricaCategory

Ferro First Place Medium Sized QuarryJukskei First Place Large Sized Quarry

Ngagane First Place Small Sized Quarry

All ASPASA 2004 Showplace Quarries are automatically

entered into the DME EMEM Award programme.

Blocked for the sake of sensitive

viewers

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Contractor Quarry

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Contractor Quarry

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Top Commercial Quarry

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Employee Training

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Community investment

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Mine Rehabilitation

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Rehabilitation in progress

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Rehabilitation in progress

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Contractor ResponsibilityResponsibility towards stakeholders - Shareholders,

Communities, Suppliers and Authorities.

Legal Compliance - Environmental and Health, Safety and Labour.

Socio-economic obligations - Community investment not “whip-in, whip-out, mine it and vie!”

Environmental responsibility - not detrimental to human health and wellbeing

Environmental ethic - ensure supplier of aggregate has necessary permits and licenses e.g.mining, water etc.

Economics - durable, quality road and product at economic cost

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Authority Responsibility

Ensure protection of Constitutional Right (S24)

Ensure level playing field;

Enforce legal requirement;

Ensure optimal resource utilisation;

Ensure environmental compliance;

Prosecute illegal operators and ensure full remediation of disturbed areas.

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Conclusions

Contractors have a legal and moral responsibility to uphold the law of the country;

Failure to check the ‘credentials’ of the supplier could result in a claim against the contractors company in terms of NEMA, the NWA and MPRDA;

Claims can be substantial and could account for all the profit made on the venture;

In interests of environment existing quarries/ excavations should be used so as to prevent proliferation of excavations and encourage optimal resource recovery.

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Thank You

ROAD PAVEMENTS FORUM

Documents

national road act

explosives act

safety act

minerals act

national water act

national forest act

ribbon development act

environment conservation