Managing Environmental Compliance

MANAGING ENVIRONMENTAL COMPLIANCE
The constitutionally protected environmental right has increased the awareness of environmental law in every aspect of decision making which might have an impact on the environment. Mining companies operating within the South African environmental sphere have an obligation to adhere to the legal obligations, norms, standards, principles and guidelines as contained in South Africa’s multifaceted network of environmental legislation. Stemming from the vast array of environmental legislation that companies have to contend with, almost on a daily basis, it has become vital for companies to obtain strategic environmental legal advice in this unique field.
By its inherent nature, mining activities impact significantly on land, water and air, i.e. the essential components of the environment. As a result of this and due to the resultant socio-economic impacts on neighbouring communities, the mining industry, more than any other industrial sector, is under constant public pressure to demonstrate continued commitment to responsible environmental management and to the concept of sustainable development.

OBJECTIVES OF COMPLIANCE AUDITS
The objective of a compliance audit follows from the underlying environmental legal liability regime. As such, the objective of an environmental legal compliance audit aims to determine the level of compliance with respect to general and specific environmental dues, standards and statutory liabilities, and environmental administrative requirements (i.e. compliance with the EMP), based on identified environmental risks.

The objectives of the EMP need to be viewed against the broad sustainability provisions of the applicable statutory provisions contained in the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA). One of the objects of the MPRDA is to give effect to the environmental right set out in Section 24 of our Constitution. Furthermore, the National Environmental Management Principles set out in Section 2 of the National Environmental Management Act, 107 of 1998 (NEMA), applies to all prospecting and mining operation, and any matter relating to such operations. These principles, which are more sustainability focused than purely environmental, need to be reflected in the EMP.
It must furthermore be noted that a mining company’s liability obligations stem from other environmental licenses, permits and authorisations. In this regard, an environmental compliance audit can be conducted for the following, in addition to the EMP:
Compliance in respect of NEMA, 107 of 1998;
Compliance in respect of the National Water Act, 36 of 1998; and
Compliance in respect of the National Environmental Management Waste Act, 59 of 2008.
A compliance audit will assist a mining company to satisfy itself that it is complying with current and expected future legislation. It may also provide a basis for the protection of the company’s directors and managers from possible fines imposed for breach of environmental legislation.
Another benefit of a compliance audit is that it may help the mining company secure loans for its operations. Financial intuitions will commonly require an environmental compliance audit as part of their “due diligence” procedures for financing acquisitions and mergers of corporations, in purchasing land or facilities, or in refinancing existing loans.