Registration Number: 2006/217972/23

Registration Number: 2006/217972/23

NPO NUMBER: 062986-NPO

PUBLIC COMMENT ON DRAFT REGIONAL CLOSURE STRATEGY OF MINES ON THE WEST RAND AND FAR WEST RAND

In my capacity as activist and whistleblower, and as the DWAF appointed convener of the public involvement and participation component of the rehabilitation of the Wonderfonteinspruit Catchment, my office is to portray grassroots level realities and thecurrent infringements upon legal measures, not to dissectthe document on the regional closure strategy of mines.The failure to timeously address current environmental incidents, and the failure to mitigate adverse environmental impacts caused by ownerless and abandoned mines and infringements, with impunity, by the operational mining companies within the West Rand and Far West Rand of their Environmental Management Plans, will encumber and not assist the future implementation of regional closure strategies. Current compliance with environmental legislation will yield the large residue of probable good in the implementation of regional closure strategies, or adopting a different, though exactly equivalent expression, will leave the smaller residue of probable environmental harm at mine closure. Handling the topic of regional closure strategy of mines, I shall endeavour to show that a regional closure strategy will be utterly senseless or utterly purposeless if current environmental incidents, pollution and encroachments of environmental principles are not addressed with diligence and urgency.

It is therefore not my intention to attempt anything like a complete examination of the document on Regional Mine Closure Strategies. It will suffice to say that the document on Regional Closure Strategy is fairly entitled to the praise of completeness and transparency. It adequately illustrates deficiencies in environmental governance, manifest in the lack of State transparency, accountability, oversight and enforcement. A new paradigm of environmental governance is needed to avoid the perpetuation of non-internalised externalities by the gold mining companies and the mischievous effects which would inevitably follow the implementation of a regional closure strategy for the mines in the absence of a paradigm shift in environmental governance.

There is a vast hoard of research[1] bequeathed to us and it is augmented regularly by fresh acquisitions. I find it relevant to here allude to an extract from the document on Regional Mine Closure Strategies:

“Pollution of the spruit by mining activities was first brought to the attention of the authorities by farmers in the Oberholzer irrigation area as early as the 1950s. However government’s responseshave, to date, been more focused on studying the problem than on actually solving it.

WRC report no. K5/1214 identified contamination sources and quantified loads, identified uranium as an important contaminant,

primarily due to its chemical toxicity and again identified the sequestration of uranium and other metals, including cobalt, nickel, copper, arsenic and cadmium in the sediments of the spruit as posing a future hazard due to the potential re-release of these contaminants into the

stream water in response to plausible geochemical scenarios. The NNR recently published a report identifying sites where radiological doses could significantly exceed the dose limit to the public, again with contaminated sediments playing a major role in the transfer of hazardous contaminants to the public (National Nuclear Regulator, 2007).

Pollution of the water and historical pollution sequestered in sediments is having a potentially devastating impact on the local community. In large parts of the catchment the World Health Organisation’s limit for uranium in drinking water, based on chemical toxicity of 15mg/l is exceeded regularly. Some communities are reported as being dependent on this water for domestic use. In addition to the direct toxicity, the recent prohibitions on stock watering have who see no option but to shoot their cattle before they die of thirst. While this has not happened, it does illustrate the degree of public awareness around this issue and the need for high-confidence publically available scientific information.

In this context, decisive and rapid action is required by all stakeholders, including the polluters and the regulators.”

(Emphasis added.)

In the aforesaid recommendations therefore the public ought to see the State fulfilling its role as custodian holding the environment in public trust for the people. However, we see with deep regret the laxity of the State in enforcing the polluter pays principle within the West Rand and Far West Rand.

It is perceived by the public that the State is failing in the protection of the Constitutional rights of the people within the West Rand and Far West Rand, with specific reference to:

• The right to life (section 11 of the Bill of Rights)
• The right to an environment that is not harmful to health or well-being (section 24 of the Bill of Rights)
• The right to sufficient water (section 27 of the Bill of Rights)

Since the document on Regional Closure Strategy does not contain the speculative conclusions of a private or unauthorized writer it is hoped that the recommendations will be swiftly implemented by the relevant organs of state and mining companies. Recommendations exist in vain if they are not implemented.

I intend to now address:

1. BPEO approach as opposed to the BATNEEC approach ……………………………….3
2. Rehabilitation concurrent with mining operations………………………………………..4
3. Financial provisions and the treatment of acid mine drainage impacts in the West Rand Basin………………………………………………………………………………...….…5
4. Reserve determination and water use licenses……………………………………...……..7
5. Community involvement………………………………………………………………….8
6. The role of the NGO as stakeholder in the regional closure strategy……………………10
7. Radiological risks……………………………………………………………………...…12

1. Municipalities, integrated development plans, communities and mine closure…………14

1. Derelict and Abandoned Mines……………………………………………………….…15

1. Data Curation and Retention…………………………………………………….………15

1. Far West Rand Dolomitic Water Association……………………………………………15

1. Environmental Management Programme Reports……………………………….………16

1. Dump reclamation activities……………………………………………………………. 17

BPEO APPROACH AS OPPOSED TO THE BATNEEC APPROACH

The document on Regional Mine Closure Strategy recommends theBATNEEC approach for remediation and mine closure. Since the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA) commits to the National Environmental Management Act’s (NEMA) principles, this implies that the BATNEEC approach can no longer be followed when determining “reasonable measures” for remediation and mine closure. NEMA does not refer to BATNEEC, but incorporates the Best Practicable Environmental Option Approach (BPEO) in section 2. NEMA defines “best practicable environmental option” to mean the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term[2].

REHABILITATION CONCURRENT WITH MINING OPERATIONS

I refer to the document on Regional Closure Strategy’s statement that “mine closure needs to be considered throughout the mine’s entire life cycle”.

In support of the aforesaid statement, it is advised that regional rehabilitation or remediation measures be implemented concurrent with mining operations and integrated in standard operation procedures, and not merely at mine closure. Concurrent rehabilitation on a regional basis, can:

1.Reduce the closure costs.

2.Reduce the environmental footprint at an early stage,

3.Reduce liabilities, including the reduction of exposure to contingent liabilities related to public safety and environmental hazards and risks

4.Lower the risk of regulatory non-compliance

5.Result in greater acceptance and less resistance from key stakeholders

6.Optimise the return of ecosystems to a functional form

7.Reduce the impact on local communities

8.Reduce the impacts upon the receiving environments.

The current unvegetated status of the majority of tailings dams with resultant erosion, runoffs and toxic and radioactive dust fallout; open pits; silted up toe paddocks; open shafts; ponding of acidic mine water; tailings spillages; unfenced hazardous mining sites; unremediated sinkholes, some of massive proportions, unrehabilitated footprints of reprocessed tailings dams within the source of the Wonderfonteinspruit, which are currently impacting upon the downstream environment, increase the closure liabilities and costs and regional environmental and societal impacts.

FINANCIAL PROVISIONS AND THE TREATMENT OF ACID MINE DRAINAGE IMPACTS IN THE WEST RAND BASIN

• The responsible, hence liable mining companiesfor the acid mine drainage impacts in the West Rand Basin are: Harmony Gold, DRD Gold and Mintails. In consideration of the apportionment of liabilities, the liabilities of the State regarding abandoned and ownerless mines need to be taken into consideration. In terms of Section 46(1) of the Minerals and Petroleum Development Act, it becomes the responsibility of the Department of Minerals and Energy. In South Africa the state has taken responsibility for mines which closed before the passage of the Mines and Works Act (Act 27 of 1956). In practice, this has already been agreed to under the Fanie Botha Accord of 1976. The liabilities are therefore apportioned as follows: Harmony Gold 46%; DRD Gold 44%; Mintails 0.8% and the State 9.2%. At the time of writing the State has not fulfilled its responsibility and liability in terms of the pumping and treatment of AMD.
• The ramifications of Acid Mine Drainage (AMD) for the sub region are enormous. The greatest focus in this regard is the Cradle of Humankind World Heritage Site. Of no lesser concern, however, are the downstream landowners and agricultural activities that are largely or wholly dependent on groundwater for potable and economic use.

Based on the possible water borne pollution and water toxicity, the communities at risk that are situated within the Tweelopiespruit Catchment (including the dolomitic aquifers and in particular the Zwartkrans Dolomitic Aquifer) are tabled below.

The number of people presented in the above Table has to be verified depending on their exact location in relation to point & diffuse pollution sources.

.

In terms of the Final Document (DWAF 16/2/7/C221/C/24), dated the 3rd of December, 2006, entitled “Impact of the discharge of Treated Mine Water, via the Tweelopies Spruit, on the receiving water body Crocodile River System, Mogale City Gauteng Province” compiled by Johan Fourie & Associates it was found that:

• 2654 Ha are under irrigation using borehole water: 70.3 Ml/day is abstracted from the aquifer within the Zwartkrans compartment for irrigation, which includes small areas within the smallholding areas of Beckendan, Eljeesee, Marabeth, Helderblom, Vlakdrift, Oaktree and Eldorado.
• 458 Ha are under irrigation using river water. The total amount is calculated at 8.93Ml/day.
• The domestic use of the water within the Zwartkrans Compartment amounts to 3.45Ml/ per day. The 3.45Ml/ per day are used by 11 491 people living on dolomite using 250 l/person/day groundwater.

The following legal measures apply to persons adversely affected by the discharge of semi treated AMD or untreated AMD:

“The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling, or minimising further pollution; environmental damage or adverse health effects must be paid for those responsible for harming the environment.”

“That pollution and degradation of the environment are avoided, or where, they cannot be altogether avoided, are minimised and remedied.”

The retrospective application of the polluter pays principle should furthermore apply since it is strongly entrenched in the NEMA and the NWA.

• The responsible mining companies and the State are liable for damages or injuries caused as a consequence ofpermitting water containing injurious matter to escape without having previously rendered it innocuous.At the time of writing, downstream water users and landusers, continue to bear the costs for current and historic pollution.
• It can logically be inferred from the current economic climate and the recent formation of a task team to mitigate the impact of the financial crisis on the local mining industrythat the mining industry is currently under severe economic constraints. It can be foreseen with certainty that the pumping and treatment costs of AMD within the West Rand will increase proportionally with the additional volumes that will have to be pumped* (to lower the ECL and to make provision for periods of high rainfall) and treated and that, as a consequence, the survival of the responsible mining companies, Harmony Gold, Mintails and DRD Gold, will be in jeopardy.(Please find appended hereto a hurried assessment of the financial costs involved for the treatment of AMD during the first phase of the WUC water treatment process.)

*(The estimation of decant volumes has proven highly problematic, with the accepted values being too low to allow for management of water during periods of high rainfall. An important observation regarding the ingress of water into the mine void in the West RandGoldfield is the rapid response observed to rainfall.)

It is therefore strongly advised that responsible officials within the DME give assiduous attention to alternative approaches for addressing thefinancial provision for mine rehabilitation and closure. The Minerals and Petroleum Resources Development Act (Act 28 of 2002) requires that a risk-based approach to determining the financial provision be adopted by the mining company. The object is to ensure that there are sufficient funds available at any stage in the life of a mine to cover the cost of rehabilitation and closure. The AMD decant within the West Rand is an emergency issue and the proposed solution for the AMD will form part of the regional closure strategy of the mines, but funds are currently locked up in the financial provision. Sound judgment and interpretation of the intent of the MPRDA regarding the use of trust funds are urgently called for. One should question whether it is efficient use of capital to set aside money in an inaccessible trust fund to care for an eventuality that is unlikely to ever happen while failing to fund emergency rehabilitation issues, such as the decant of AMD from the West Rand Basin, which is currently happening and the enormous ramifications for the sub region if the responsible mining companies, because of financial constraints, have to close.

It can be anticipated with reasonable certainty that the timeous address of the AMD, treatment of the decant and addressing off-site impacts will contribute to reducing the responsible mining companies’ future liabilities. Consequently the amount that is needed for rehabilitation at closure can be reduced.

• Section 2 of the National Environmental Management Act stipulates that sustainable use of resources requires consideration of the use and exploitation of renewable natural resource (in the case under consideration, water) and their ecosystems and that it should not exceed the level beyond which their integrity is jeopardised (the carrying capacity principle). The ecological integrity of the Tweelopiespruit has been severely compromised by the discharge of treated and semi-treated acidic mine water, in particular impacts related to increased salt loads, heavy metals and elevated levels of radioactivity. Remediation of the river system is a priority. In the interim, until the WUC water plant has been established, alternative water sources should be made available, with immediate effect, to downstream water users and to the animals within the Krugersdorp Game Reserve.

• To protect the ecological integrity of aquatic ecosystems and human health, a more comprehensivce approach is necessary, one that focuses on the potential effects of chemical substances, rather than on the substance themselves.Chronic effects such as mutagenicity, teratogenicity and estrogenicity should also be assessed.

• Toxic mine water poses a health risk to mammals and humans. A range of tests for human health protection was availabe at the Toxicity Testing Laboratory, CSIR. It is recommended that some of these tests be used in future studies.

RESERVE DETERMINATION AND WATER USE LICENSES

The current status of the water resource in the West Rand and the Far West Rand in terms of Section 41 of the NWA has not been determined, that is, the quantity and quality of water to be reserved for basic human needs and aquatic ecosystems, and the carrying capacity of the resource. Water use licenses in terms of Section 27 of the NWA have not been issued to the operational gold mining companies within the West Rand and Far West Rand notwithstanding the effluxion of 10 years after the promulgation of the NWA in 1998.

COMMUNITY INVOLVEMENT[3]

I refer to the proposal: “Due to the urgent need to develop these strategies it is proposed at this point in time that only relevant authorities, including local authorities and the mining industry be consulted.”

Consultation with local communities has historically been characterized by:

Failure regarding dialogue and face to face meetings

Failure to build long term, continuing and sustainable relationships

Communities were not listened to and promises were not fulfilled

Failure to develop trust between local communities and the mining companies

It is respectfully proposed that community engagement ought to commence as early as possible in the development of the regional closure strategies. Exclusion of communities will further contribute to the mistrust and the conception of collusion between the mining industry and Government.

Local communities, particularly the vulnerable and disadvantaged persons within the West Rand and Far West Rand, are ignorant of the environmental impacts, hazards and risks of gold mining within the West Rand and Far West Rand. There has been little* or no effort by the mining companies or the State to raise awareness of environmental or health risks, or to develop the understanding, skills and capacity necessary for achieving equitable and effective participation in environmental decision making.

*(Harmony Gold provides a R13 000 a month sponsorship for the conducting of workshops amongst affected local communities. The Federation for a Sustainable Environment is currently conducting these workshops in order to raise environmental awareness of mining impacts and to empower local communities to participate meaningfully in public participation processes.)