Menu
Growing public scrutiny of the negative environmental impact of mining activities makes it critical for the mining industry to begin re-thinking their waste management strategies within a refined legislative environment. Davide Bishop, mining and environment specialist at Bishop Fraser Attorneys, explains below.
Worldwide, mining and metallurgical processes produce significant volumes of waste which is hazardous to both people and the environment. South Africa’s mining sector, which has an estimated value of R20.3 trillion and contributes roughly 8.1% to the country’s gross domestic product (GDP), accumulates a disproportional 10% – 13% of global mining waste. This is expected to reach around 11.3 million tonnes by 2022 within a global market that will produce an estimated 12.96 billion tonnes of mining waste by 2024 (Technavio). Such waste constitutes one of the biggest challenges to the sustainable mining operations.
Mining’s complex processes, from exploration to mine development, mineral beneficiation, metal extraction, smelting and refining, give rise to waste such as dusts, sludges and slags, waste water and effluents, and gaseous emissions. The disposal of this waste leads to environmental challenges such as acid mine drainage, airborne dust emissions, and contamination of surface – and groundwater sources (Matinde et al, 2018).
Around the world, as well as in South Africa, regulation and legislation guiding mining waste (as well as general waste) seek to enforce circular economy-based business models, with the aim of arriving at a position of zero waste. South Africa’s mining waste management falls within the framework of the National Environmental Management Act, 107 of 1998, as amended (“NEMA”) and more specifically the National Environmental Management: Waste Act, 59 of 2008, as amended (“NEM: WA”), with ongoing proposed amendments to these instruments continuously seeking to tighten regulation, increase liability and strengthen accountability.
Circular economy-based models aim to alter the pattern of both product and material flows through the economy so as to limit the adverse environmental side-effects that result from the extraction, use and disposal of natural resources and materials. For the mining industry this will require a significant, industry-wide “re-think” that takes a long-term view on how waste is managed and used, both within current operations and future projects (Tayebi-Khorami et al, 2019). Crucially, it will demand the holistic coordination of cross-disciplinary expertise to include social, environmental, technical, legal, regulatory and economic aspects. Innovative solutions would need to draw on existing approaches such as cleaner production, by-products from waste, re-engineering of processes, closed-loop systems and product stewardship (Tayebi-Khorami et al, 2019).
A caution, however, is that while the reuse of mining and mineral-processing wastes could reduce the environmental impact of mining waste disposal, some of the reuse and recycling measures might potentially give rise to new and serious environmental problems (Bian et al, 2012). Potential risks would need to be carefully measured through various ecological risk -, life cycle and sustainability assessments.
Almost certainly, the overarching driver in terms of the feasibility of a specific reuse technology would be the economic cost benefit. The reality is that no matter how sound the environmentally-friendly process may be, should the costs associated with the final target material extraction or mine waste reuse be economically prohibitive, it will be difficult to encourage implementation in the absence of defined regulation or government subsidy (Bian et al, 2012).
Despite the various challenges in implementing circular economy-based models, their successful adoption could be a game changer for South Africa’s mining industry. However, Dr Lorren Haywood at the CSIR’s Sustainability Science and Resource Economics (SSRE) research group, highlights that despite the proposed amendments to NEMA, South Africa’s legislation could unwittingly hamper this process due to existing shortfalls. Haywood writes that while mining waste definitions imply “a type of waste resulting from the exploration, mining, quarrying, and the physical and chemical treatment of minerals” they fail to legitimatise it as an actual waste. Additionally, the term “residue” is yet to be defined as a resource; in doing so would enable it to be used as a by-product. Haywood also questions the cradle-to-grave approach to mining waste management, which she believes does not promote circularity. Rather, a cradle-to-cradle focus would be better placed to “encourage and force the mining applicants to reconsider the economic value of the mine residue and encourage its reuse into other streams.” Interestingly, the Supreme Court of Appeal took such an approach in the recent matter of Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020), in which it was found that slag which was not unwanted, rejected or abandoned did not constitute waste as defined in NEM: WA and, as a consequence, no waste management licence was required to deal with such commercially valuable slag.
Moving mining towards a zero-waste-practicing industry is not impossible, but it is a complex undertaking. It requires commitment, insight and the acknowledgement that waste management must be embedded into all functions. Most importantly, it will require the delivery of concerted and holistic long-term strategies that are underpinned by regulations which explicitly encourage the take up of sustainable cradle-to-cradle operational practices.
Bishop Fraser is a boutique firm with offices in Johannesburg and Cape Town, specialising in commercial, mining and environmental law, with the ability to provide counsel across numerous practice areas. Bishop Fraser’s multi-disciplinary team of experts provides bespoke, practical and cost-effective solutions to complex legal challenges.
