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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 Cluett Environmental Consultant Holcim. Content. Some quarrying statistics Some Definitions Legal trends in South Africa

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ROAD PAVEMENTS FORUM

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  1. ROAD PAVEMENTS FORUM Legal implications when using borrow pits and mobile crushers for the production of road material. 22 November 2005 Alan Cluett Environmental Consultant Holcim

  2. 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 Road Pavement Forum 2005

  3. 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. Road Pavement Forum 2005

  4. 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”, i.e. “Sustainable Development is development that meets the needs of the present without compromising the future generations to meet their own needs” Road Pavement Forum 2005

  5. Legal Trends in South Africa Prior to 1994 “Old order” legislation formed and implemented in the era of economic sanctions (political) - Advertising on Road and Ribbon Development Act (1940);  Water Act (1957); Explosives Act (1965);  Atmospheric Pollution Prevention Act (1965);  National Road Act (1971); Conservation of Agricultural Resources Act (1983);  Environment Conservation Act (1989);  Minerals Act (1991);….. Road Pavement Forum 2005

  6. Legal Trends in South Africa Post 1994 “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).     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 Road Pavement Forum 2005

  7. Extracts from South African Legislation Constitution of the Republic of South Africa.(1996). 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. Road Pavement Forum 2005

  8. 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…. Road Pavement Forum 2005

  9. 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. Road Pavement Forum 2005

  10. 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 Road Pavement Forum 2005

  11. 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; Road Pavement Forum 2005

  12. Extracts - National Environmental Management Act (1998) (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. Road Pavement Forum 2005

  13. Extracts - National Environmental Management Act (1998) 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 Road Pavement Forum 2005

  14. Extracts - National Environmental Management Act (1998) 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; Road Pavement Forum 2005

  15. Extracts - National Environmental Management Act (1998) 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;... Road Pavement Forum 2005

  16. 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. Road Pavement Forum 2005

  17. 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. Road Pavement Forum 2005

  18. 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;… Road Pavement Forum 2005

  19. Extracts - Mineral & Petroleum Development Act (2002) 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; ... Road Pavement Forum 2005

  20. Extracts - Mineral & Petroleum Development Act (2002) 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 Road Pavement Forum 2005

  21. Extracts - Mineral & Petroleum Development Act (2002) 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 Road Pavement Forum 2005

  22. Extracts - Mineral & Petroleum Development Act (2002) 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; Road Pavement Forum 2005

  23. Extracts - Mineral & Petroleum Development Act (2002) 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. Road Pavement Forum 2005

  24. 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! Road Pavement Forum 2005

  25. 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 Road Pavement Forum 2005

  26. Weathered Dolerite Fresh Dolerite Road Pavement Forum 2005

  27. Blocked for the sake of sensitive viewers Other Considerations Continuous Environmental Performance Road Pavement Forum 2005

  28. External multi-disciplinary audit Blocked for the sake of sensitive viewers All ASPASA 2004 Showplace Quarries are automatically entered into the DME EMEM Award programme. Road Pavement Forum 2005

  29. Contractor Quarry Road Pavement Forum 2005

  30. Contractor Quarry Road Pavement Forum 2005

  31. Top Commercial Quarry Road Pavement Forum 2005

  32. Employee Training Road Pavement Forum 2005

  33. Community investment Road Pavement Forum 2005

  34. Mine Rehabilitation Road Pavement Forum 2005

  35. Rehabilitation in progress Road Pavement Forum 2005

  36. Rehabilitation in progress Road Pavement Forum 2005

  37. Contractor Responsibility Responsibility 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 Road Pavement Forum 2005

  38. 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. Road Pavement Forum 2005

  39. 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. Road Pavement Forum 2005

  40. Thank You Road Pavement Forum 2005

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