APPEAL TO THE MINISTER OF ENVIRONMENTAL AFFAIRS IN TERMS OF SECTION 43(1A) OF NEMA AND REGULATION 4 OF THE NEMA APPEAL REGULATIONS

Transcription

1 1 APPEAL TO THE MINISTER OF ENVIRONMENTAL AFFAIRS IN TERMS OF SECTION 43(1A) OF NEMA AND REGULATION 4 OF THE NEMA APPEAL REGULATIONS Appellant: Ezulwini Mining Company (Pty) Ltd Respondent: Regional Manager: Mineral Regulation, Gauteng Region, Department of Mineral Resources Subject of the Appeal: Negative environmental authorisation decision dated 30 April 2018 for the decommissioning of the underground mine workings and associated cessation of pumping operations at Ezulwini Mine, Gauteng Province (DMR Reference: GP 30/5/1/2/2 (38) MR). Appeal Addressed to: The Minister of Environmental Affairs For the attention of: Mr. Z Hassam, Director: Appeals and Legal Review By hand: Environment House 473 Steve Biko Road Arcadia Pretoria By AppealsDirectorate@environment.gov.za

2 2 KINDLY TAKE NOTICE that Ezulwini Mining Company (Pty) Ltd (the Appellant) hereby appeals in terms of section 43(1A) of the National Environmental Management Act 107 of 1998, as amended ( NEMA ) and Regulation 4 of GN R993 in GG of 8 December 2014, as amended ( Appeal Regulations ), promulgated under NEMA, to the Minister of Environmental Affairs, against the negative environmental authorisation decision of the Regional Manager: Mineral Regulation for the Gauteng Regional office of the Department of Mineral Resources dated 30 April 2018 for the decommissioning of the underground mine workings and associated cessation of pumping operations at Ezulwini Mine, Gauteng Province under reference GP 30/5/1/2/2 (38) MR. PROJECT DETAILS Project Name: Decommissioning of the underground mine workings and associated cessation of pumping operations at Ezulwini Mine Project Location: Project Reference Number: Date of Negative Environmental Authorisation Decision: Farm Jachtfontein 344, Farm Klipgat 700, Farm Modderfontein 345 and Farm Waterpan 292, Registration Division IQ, Rand West City Local Municipality, Gauteng Province DMR Reference: GP 30/5/1/2/2 (38) MR 30 April 2018 Date of Submission of this Appeal: 21 May 2018 DETAILS OF THE APPELLANT Name of Appellant: Appellant s Legal Representative: Ezulwini Mining Company (Pty) Ltd Warburton Attorneys Postal Address: 53 Dudley Road, Parkwood, Johannesburg, Address: Catherine@warburtons.co.za Telephone Number: (011) Fax Number: (011)

3 3 APPEAL TABLE OF CONTENTS 1. INTRODUCTION APPEAL IN TERMS OF NEMA PARTIES TO APPEAL OVERVIEW OF APPEAL THE ENVIRONMENTAL AUTHORISATION APPLICATION PROCESS HISTORY OF EZULWINI MINE REASON FOR DECOMMISSIONING OF EZULWINI LISTED ACTIVITIES REQUIRING AN ENVIRONMENTAL AUTHORISATION BASIC IMPACT ASSESSMENT PROCESS FOLLOWED DUTIES OF THE COMPETENT AUTHORITY AND ACTIONS TAKEN CHRONOLOGY OF KEY EVENTS SHOWING FBAR S COMPLIANCE WITH EIA REGULATIONS KEY EVENTS BEFORE THE SUBMISSION OF THE FBAR ON 12 OCTOBER KEY EVENTS AFTER THE SUBMISSION OF THE FBAR ON 12 OCTOBER PROCESS FOLLOWED BY THE APPELLANT TO OBTAIN A WULA PROCESS TO BE FOLLOWED BY THE APPELLANT TO OBTAIN A CLOSURE CERTIFICATE THE APPLICATION FOR A CLOSURE CERTIFICATE IN TERMS OF SECTION 43 OF THE MPRDA PARTIAL CLOSURE OF A MINE LEGAL GROUNDS OF APPEAL IN RESPONSE TO THE RESPONDENT S NEGATIVE ENVIRONMENTAL AUTHORISATION DECISION OVERALL RESPONSE TO RESPONDENT S NEGATIVE ENVIRONMENTAL AUTHORISATION DECISION AND THE FAILURE TO PROPERLY CONSIDER THE CONTENT OF THE FBAR COMPLIANCE WITH APPENDIX 1 TO THE EIA REGULATIONS FAILURE TO CONSIDER THE EMPR FAILURE TO PROPERLY CONSIDER THE CONTENT OF THE SPECIALIST STUDIES FAILURE TO PROPERLY CONSIDER OTHER APPENDICES TO THE FBAR FAILURE TO CONSIDER THE ADVANTAGES OF RE-WATERING SPECIFIC RESPONSES TO 12 REASONS IN RESPONDENT S NEGATIVE ENVIRONMENTAL AUTHORISATION DECISION BASED ON ABOVE GROUNDS OF APPEAL AD REASON

4 4 8.2 AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON AD REASON CONCLUSION AND RELIEF SOUGHT LIST OF ANNEXURES ANNEXURE 1: ANNEXURE 2: ANNEXURE 3: ANNEXURE 4: ANNEXURE 5: ANNEXURE 6: A copy of the Respondent s negative environmental authorisation decision, dated 30 April 2018 Sibanye PowerPoint presentation titled Ezulwini Shaft Costing Breakdown, dated March 2018 Excel spreadsheet with figures on the costs for care and maintenance for Ezulwini mine, dated 16 March 2018 FBAR and appendices thereto (hardcopy provided to the Minister of Environmental Affairs; electronic copy available at proposed-closure-of-the-underground-workings-of-the-ezulwini- Operations/) Title Page, Synopsis, Index and Checklist Table of the FBAR and Index to Appendices to FBAR, FBAR dated 12 October 2017 Notice of Motion in the High Court application under Case Number 14778/2018, dated 13 and 16 April 2018

5 5 ANNEXURE 7: ANNEXURE 8: Order of Court in the High Court application under Case Number 14778/2018, dated 2 May 2018 Overview of engagements with respect to EMC s environmental authorisation application from August 2016 leading up to the submission of the FBAR on 12 October 2017: ANNEXURE 8(A): Pre-application consultation meeting minutes from meeting between Sibanye, J&W and the DMR, dated 28 September 2016 ANNEXURE 8(B): Meeting minutes from meeting between Sibanye, J&W, the DMR, DWS and Rand West City Local Municipality, dated 6 October 2016 ANNEXURE 8(C): Letter to the DMR from Sibanye, dated 25 November 2016 ANNEXURE 8(D): Meeting agenda and notes from meeting between Sibanye, and the GTT, dated 1 December 2016 ANNEXURE 8(E): Letter to the DMR from J&W, dated 31 March 2017 ANNEXURE 8(F): Attendance register from meeting between Sibanye, J&W and the DMR, dated 10 April 2017 ANNEXURE 8(G): Meeting minutes from meeting between J&W, Sibanye, DMR and DWS, dated 13 April 2017 ANNEXURE 8(H): Letter to the DMR from J&W, dated 3 May 2017 ANNEXURE 8(I): Letter to the DMR from J&W, dated 13 June 2017 ANNEXURE 8(J): Letter to EMC from the DMR, dated 28 June 2017 ANNEXURE 8(K): Letter to the DMR from J&W, dated 17 July 2017 ANNEXURE 8(L): Letter to EMC from the DMR, dated 7 August 2017 ANNEXURE 8(M): Letter to the DMR from Sibanye, dated 15 August 2017

6 6 ANNEXURE 8(N): Letter to the DMR from Sibanye, dated 3 November 2017 ANNEXURE 9: Meeting minutes from meeting between Sibanye, J&W and GTT, dated 7 December 2017 ANNEXURE 10: Letter to the DMR from Sibanye, dated 8 February 2018 ANNEXURE 11: Letter to the DMR from J&W, dated 21 February 2018 ANNEXURE 12: ANNEXURE 13: ANNEXURE 14: J&W s notification to stakeholders of CBAR, revised CBAR and FBAR document availability Letter to EMC from the DMR, letter dated 15 February 2018, received by EMC on 22 February to Sibanye and J&W from the DMR, dated 22 February 2018 ANNEXURE 15: Letter to DMR from Sibanye, dated 26 February 2018 ANNEXURE 16: ANNEXURE 17: ANNEXURE 18: Letter to the DMR from EMC s attorneys of record, Warburton Attorneys, dated 15 March 2018 Letter to Sibanye from J&W, dated 12 March 2018 (also attached Warburton Attorneys letter to the DMR) Letter to Sibanye from Gold Fields South Deep Mine, dated 5 March 2018 ANNEXURE 19: from Gold Fields, dated 27 July 2017 ANNEXURE 20: Letter from J&W to DWS, dated 12 October 2017 ANNEXURE 21: correspondence between EMC and the Regional Manager, dated 3 May 2018 ANNEXURE 22: Council for Geoscience s comment sheet, dated 6 September 2017 ANNEXURE 23: correspondence between J&W to the Council for Geoscience, dated 20 February 2018 ANNEXURE 24: ANNEXURE 25: DMR (Mine Health and Safety Directorate) to the Council for Geoscience, the DWS and the DMR, dated 31 January correspondence between Council for Geoscience, DMR, Mine Health and Safety Directorate, J&W and SRK

7 7 ANNEXURE 26: correspondence between Council for Geoscience, J&W and SRK ANNEXURE 27: FWRDWA minutes, dated 15 March 2018 LIST OF ACRONYMS USED IN THIS APPEAL AMD BAR CBAR EA EAP EIA EMC DEA DMR DWS EMPr FBAR FWRDWA GG GN GTT I&AP J&W Ml MPRDA NEMA Acid mine drainage Basic Assessment Report Consultation Basic Assessment Report Environmental authorisation Environmental assessment practitioner Environmental impact assessment Ezulwini Mining Company (Pty) Ltd Department of Environmental Affairs Department of Mineral Resources Department of Water and Sanitation Environmental Management Programme Final Basic Assessment Report Far West Rand Dolomitic Water Association Government Gazette Government Notice Government Task Team for Mine Closure and Water Management, comprising the DMR, DWS and the Council for Geoscience Interested and affected party Jones &Wagener (Pty) Limited Megalitres (1 million litres) Mineral and Petroleum Resources Development Act 28 of 2002, as amended National Environmental Management Act 107 of 1998, as amended

8 8 NWA SRK WUAAAC WUL WULA National Water Act 36 of 1998, as amended SRK Consulting (South Africa) (Pty) Ltd Water Use Authorisation Assessment Advisory Committee Water use licence Water use licence amendment

9 9 EZULWINI MINING COMPANY (PTY) LTD APPELLANT AND REGIONAL MANAGER: MINERAL REGULATION GAUTENG REGION, DEPARTMENT OF MINERAL RESOURCES RESPONDENT APPELLANT S APPEAL 1. INTRODUCTION 1.1 Appeal in terms of NEMA This is the Appellant s appeal to the Minister of Environmental Affairs ( Minister ) in terms of section 43(1A) of the National Environmental Management Act 107 of 1998, as amended ( NEMA ) and Regulation 4 of GN R993 in GG of 8 December 2014, as amended ( Appeal Regulations ) promulgated under NEMA against the Respondent s negative environmental authorisation decision dated 30 April 2018 for the decommissioning of the underground mine workings and associated cessation of pumping operations at Ezulwini mine, Gauteng Province under reference GP 30/5/1/2/2 (38) MR. A copy of the Respondent s negative environmental authorisation is attached hereto as Annexure This appeal is submitted in compliance with Regulation 4(1) of the Appeal Regulations as it is submitted to the Minister, as the appeal authority, within the prescribed 20-day time period afforded to the Appellant in terms of Regulation 4 of the Appeal Regulations, namely on 21 May This statement satisfies the requirement of Regulation 4(2)(b)(iii) of the Appeal Regulations.

10 In terms of Regulation 4(1) of the Appeal Regulations, the Appellant must further provide a copy of its appeal to all registered interested and affected parties ( I&APs ) and organs of state with an interest in this matter within 20 days. This appeal is submitted in compliance with Regulation 4(1) of the Appeal Regulations, as a copy of this appeal, and its annexures, has been ed to all such persons in terms of Regulation 8(1) of the Appeal Regulations and section 47D(1)(bB) of NEMA, except for the environmental authorisation application (Annexure 4 ), which is voluminous in nature, and is therefore available at: This statement satisfies the requirement of Regulation 4(2)(b)(iii) of the Appeal Regulations The Appellant s appeal is submitted by Warburton Attorneys, the duly authorised representative of the Appellant. 1.2 Parties to Appeal The Appellant is Ezulwini Mining Company (Pty) Ltd ( EMC ), a private company duly incorporated with limited liability according to the company laws of the Republic of South Africa with its registered offices situated at Libanon Business Park, 1 Hospital Street, Libanon, Westonaria. The Appellant is a wholly owned subsidiary of Sibanye Gold Limited, trading as Sibanye-Stillwater ( Sibanye ) The Respondent is the Regional Manager: Mineral Regulation for the Gauteng Regional office of the Department of Mineral Resources ( DMR, Regional Manager ). The office of the Regional Manager is situated at 78 De Korte Street, Corner of De Beer Street, Mineralia Building, Braamfontein. The Regional Manager is the competent authority to decide on an environmental authorisation application for a mining-related activity as a result of the delegation of such power from the Minister of Mineral Resources in terms of NEMA read with the Environmental Impact Assessment Regulations made in terms thereof and published in GN R983 in GG of 4 December 2014, as amended ( EIA Regulations ).

11 The Minister is the appeal authority, as defined in Regulation 1 of the Appeal Regulations, and as such, the competent authority to decide on this appeal. The office of the Minister is situated at Environment House, 473 Steve Biko Road, Arcadia, Pretoria. 1.3 Overview of Appeal In this appeal, EMC first sets out: the environmental authorisation process that is prescribed by the EIA Regulations and the process that was followed by the Appellant and its environmental assessment practitioner ( EAP ) Jones &Wagener (Pty) Limited ( J&W ); a chronology of key relevant events in order to demonstrate that the environmental authorisation application complies with all legal requirements and that all of the Respondent s queries have been adequately addressed; the process being undertaken by the Appellant to obtain a water use licence ( WUL ) amendment ( WULA ); and the process to be followed by the Appellant to obtain a closure certificate Second, the appeal details the four main legal grounds of appeal in response to the Respondent s negative environmental authorisation decision dated 30 April 2018, namely: Ground I: The Appellant respectfully submits that the Regional Manager erred by taking irrelevant, and in certain instances factually and/or legally incorrect, considerations into account and by not properly considering and/or not giving due weight to relevant considerations when issuing the negative authorisation Ground II: The Appellant respectfully submits that the decision of the Regional Manager is not rationally connected to: the purpose of the empowering provision in section 24 of NEMA; and the information before the Regional Manager.

12 Ground III: The Appellant respectfully submits that the Regional Manager failed to comply with his peremptory duties in terms of section 24O of NEMA, which sets out the criteria for decision-making, in that: the Regional Manager failed to comply with NEMA, in non-compliance with section 24O(1)(a) of NEMA. It is submitted that the Regional Manager failed to fully apply the principles as set out in section 2 of NEMA in his decision, namely that sustainable development requires the consideration of all relevant factors including, section 2(4)(b) of NEMA which refers to the selection of the best practicable environmental option, and section 2(4)(i) which requires that the social, economic and environmental impacts of activities, including disadvantages and benefits must be considered and decisions must be appropriate in light of such assessment ; the Regional Manager failed to take into account all relevant factors, including any feasible and reasonable alternatives, in non-compliance with section 24O(1)(b)(iv) of NEMA; the Regional Manager failed to take into account the information contained in the application form, reports, comments, representations and other documents submitted as prescribed in terms of NEMA, to the competent authority, in connection with the application, in non-compliance with section 24O(1)(b)(vi) of NEMA; the Regional Manager failed to take into account any comments received from organs of state that have jurisdiction over any aspect of the activity which is the subject of the application in non-compliance with section 24O(b)(vii) of NEMA; the Regional Manager failed to take into account the comments of any organ of state charged with the administration of any law which relates to the activity in question in non-compliance with section 24O(c) of NEMA; and the Regional Manager failed to consult with every State department that administers a law relating to a matter affecting the environment in noncompliance with sections 24O(2), 24O(2A) 24O(3) of NEMA.

13 Ground IV: The Appellant respectfully submits that the process followed by the Regional Manager in considering EMC s application is procedurally incorrect in that the Regional Manager did not comply with the process-related requirements of the EIA Regulations in that the Regional Manager: did not comply with the statutory timeframes; did not consult and obtain comments on the application from the relevant State departments before making the decision and within the statutory period of 30 days provided for such input; and required submissions and actions from EMC that the Regional Manager is not statutorily empowered to require and which are impossible for EMC to obtain or provide Third, the appeal provides an overall response to the Respondent s negative environmental authorisation decision dated 30 April 2018, based on the abovementioned grounds of appeal, including that: the information contained in the environmental authorisation application fully complies with the statutorily prescribed requirements; the Regional Manager failed to consider the EMPr, a material document forming part of the application; the Regional Manager failed to properly consider the content and merits of the application, including the findings of the specialist studies and the other appendices to the application; and the Regional Manager, in not properly considering the FBAR, has not taken into account the stated environmental, economic and social advantages of the application Fourth, the appeal provides a response to each of the 12 reasons provided in the Respondent s negative environmental authorisation decision dated 30 April 2018, based on the above-mentioned grounds of appeal. In this respect, the Appellant will demonstrate how each of these reasons is either incorrect or unreasonable in the circumstances.

14 Lastly, the appeal sets out the key conclusions to be drawn and the relief EMC seeks To the extent that the Appellant fails to deal with any of the content of the Respondent s negative environmental authorisation decision in this appeal, such content is disputed. 2. THE ENVIRONMENTAL AUTHORISATION APPLICATION PROCESS 2.1 History of Ezulwini mine EMC currently owns and operated a gold and uranium mine on the following farms: Farm Jachtfontein Number 344, Farm Klipgat Number 700, Farm Modderfontein Number 345 and Farm Waterpan Number 292, Registration Division IQ, situated in the Rand West City Local Municipality, within the West Rand District Municipality. The mine is located approximately 8 km south-east from the town Westonaria, in Gauteng and is known as the Ezulwini mine ( Ezulwini ). Ezulwini is also known as Cooke 4 (after the Cooke 4 Shaft) In order to mine the underground workings of Ezulwini, underground water must be pumped out of the mine. It follows that on cessation of pumping, the mine will re-water A brief chronology of key points in Ezulwini s history is relevant: underground mining activities at Ezulwini mine first commenced in 1961, at which stage Ezulwini and South Deep Mine were one mine with a north and south shaft; in 2000, Harmony Gold Mine Limited ( Harmony ) acquired Ezulwini (then Randfontein Estates No. 4 Shaft); in July 2001, Harmony ceased its mining operations at Ezulwini, and accordingly prepared a closure plan which was submitted to the DMR. As such, Ezulwini

15 15 was put on care and maintenance, allowing for pumping of underground water only; pursuant to Harmony s intended closure, between 2000 and 2004, plugs were put in place between Ezulwini and South Deep Mine (now separately owned mines), so that on cessation of pumping and Ezulwini s re-watering, there would be no inflow of water into South Deep Mine. Following the installation of these plugs, pumping of water ceased on 8 February 2005; later in 2005, a new mining company (Simmer and Jack (Pty) Ltd, which then became First Uranium Limited and was in 2012, acquired by Gold One International Limited) acquired Ezulwini and by October 2005, pumping operations began again with the intention to determine the feasibility of reopening the mine; in 2014, Sibanye acquired Ezulwini s underground and surface operations; and in September 2016, EMC, as a wholly owned subsidiary of Sibanye, ceased underground mining operations as the mine was no longer economically viable Further detail on the history of Ezulwini mine is included in Appendix B to Annexure Reason for Decommissioning of Ezulwini Ezulwini is no longer economically viable to mine. For this reason, EMC intends to decommission the underground workings at Ezulwini. Moreover, Ezulwini is costing EMC on average R20 million per month to maintain. The principal maintenance activity is the pumping and treating of underground water from the mine which is no longer necessary as the mine is to be decommissioned. With respect to the maintenance costs, the Honourable Minister is referred to the attached Sibanye PowerPoint presentation entitled Ezulwini Shaft Costing Breakdown, presented on or about March 2018, marked as Annexure 2, as well as an excel spreadsheet with figures as of 16 March 2018, on the costs for care and maintenance for Ezulwini, marked as Annexure 3.

16 In order to decommission Ezulwini lawfully and to cease the pumping of underground water, EMC must apply for an environmental authorisation (also known as an EA ) in terms of section 24 of NEMA and the EIA Regulations It is important to note that Harmony previously obtained the authority s consent to close and re-water the underground workings at Ezulwini Regulation 12 of the EIA Regulations provides that an applicant for an environmental authorisation must appoint an EAP to manage the environmental authorisation application. In this respect, on 7 September 2016, EMC appointed J&W as its EAP. 2.3 Listed Activities Requiring an Environmental Authorisation In terms of section 24(2) and section 24D of NEMA, the Minister (or an MEC with the concurrence of the Minister) may identify activities which may not commence without an environmental authorisation from the competent authority. These activities are identified in 1 of 3 Listing Notices forming part of the EIA Regulations which also prescribe the process to be followed to obtain such environmental authorisation The decommissioning of a mine is listed in Listing Notice 1 in GN R983 in GG of 4 December 2014, as amended ( Listing Notice 1 ). Activity 22 in Listing Notice 1 reads: The decommissioning of any activity requiring (i) (ii) a closure certificate in terms of section 43 of the Mineral and Petroleum Resources Development Act 28 of 2002 [( MPRDA )] ; or a prospecting right, mining right, mining permit, production right or exploration right, where the throughput of the activity has reduced by 90% or more over a period of 5 years excluding where the competent

17 authority has in writing agreed that such reduction in throughput does not constitute closure Regulation 2 in Listing Notice 1 defines decommissioning as to take out of active service permanently or dismantle partly or wholly, or closure of a facility to the extent that it cannot be readily recommissioned As the decommissioning of Ezulwini encompasses a cessation of water pumping, Ezulwini s WUL further requires changes, thus also triggering Activity 34 in Listing Notice 1, which reads: The expansion of existing facilities or infrastructure for any process or activity where such expansion will result in the need for a permit or licence or an amended permit or licence in terms of national or provincial legislation governing the release of emissions, effluent or pollution, Where a person intends to conduct activities listed in Listing Notice 1, Regulation 3(2) of Listing Notice 1 provides that a basic impact assessment must be conducted as part of the application for the required environmental authorisation, which basic impact assessment process is set out in Regulation 19 of the EIA Regulations. 2.4 Basic Impact Assessment Process Followed Regulation 19(1) of the EIA Regulations provides that following a basic impact assessment, a Basic Assessment Report ( BAR ) must be submitted to the competent authority, which in this case was the Respondent. Regulation 19(3) of the EIA Regulations provides that the BAR must contain the information contained in Appendix 1 to the EIA Regulations On 12 October 2017, in full compliance with Regulation 19 of the EIA Regulations, J&W submitted to the Respondent a Final BAR ( FBAR ), together with an Environmental Management Programme ( EMPr ) and a Closure Plan, in support

18 18 of EMC s application for an environmental authorisation for the decommissioning of the underground workings of Ezulwini and the associated cessation of pumping. In this respect, 2 hardcopies and 2 electronic copies of the full application (FBAR, EMPr, Closure Plan and all other appendices thereto) were provided to the DMR. On 24 October 2017, at the DMR s request, an additional 15 electronic copies of the application were provided in order for the DMR to circulate same to other state departments such as the Principal Inspector of Mines, the Council for Geoscience and the Department of Water and Sanitation ( DWS ) A hardcopy of the FBAR and its appendices are provided to the Minister and is marked as Annexure 4 hereto. As the FBAR and its appendices run to hundreds of pages, an electronic copy is available for all I&APs and organs of state at Selected key pages of the FBAR are attached hereto and marked as Annexure 5, namely: the FBAR s Title Page; the FBAR s Synopsis, the FBAR s Index, the FBAR s Checklist Table (references the section of the FBAR where each requirement of the relevant Appendices to the EIA Regulations are complied with in the FBAR); and the Index to the FBAR s appendices. 2.5 Duties of the Competent Authority and Actions Taken Regulation 17 of the EIA Regulation provides that upon receipt of an environmental authorisation application, the Respondent, as the competent authority, is duty-bound to check that the application contains the information required in the EIA Regulations. No indication was received from the Respondent

19 that EMC s FBAR, submitted in support of its environmental authorisation on 12 October 2017, did not comply with these formal requirements In terms of Regulation 20(1) of the EIA Regulations, the competent authority is required to make a decision on whether to grant or refuse an environmental authorisation within 107 days after receipt of the BAR. As the FBAR was submitted on 12 October 2017, the Respondent s decision thereon was therefore due on 19 February 2018 (with reference to the calculation of timeframes in Regulation 3(1) (2) of the EIA Regulations) On 19 February 2018, the statutorily prescribed 107-day period ended without a decision being made or communicated to EMC on the grant or refusal of its environmental authorisation application Instead, after a decision was due, on 22 February 2018, the Respondent requested further information from the Appellant on the environmental authorisation application, which is dealt with more fully later in this appeal (see Annexure 13 ). On 15 March 2018, the Appellant responded to every information request made by the Respondent (see Annexure 16 and 17 ). Despite this, no decision was made or communicated to EMC on the grant or refusal of its environmental authorisation application On 13 April 2018, the Appellant launched High Court proceedings against the Respondent and the Minister of Mineral Resources to compel the Respondent to take a decision, which was to be heard on an urgent basis on 2 May 2018 in the Gauteng Local Division, Johannesburg under Case Number 14778/2018. In this respect, see attached a copy of the Notice of Motion marked as Annexure 6. The Respondent and the Minister of Mineral Resources did not oppose the application On 30 April 2018, the Respondent issued a negative environmental authorisation decision under reference GP 30/5/1/2/2 (38) MR. A copy of the Respondent s negative environmental authorisation is attached hereto as Annexure 1. The

20 20 decision states that the DMR is not satisfied with the information [provided in the environmental authorisation application] and cites 12 reasons as to why an environmental authorisation was refused The application in the High Court under Case Number 14778/2018 was accordingly withdrawn on 2 May 2018, and the Respondent was ordered to pay the costs of the application on the unopposed scale. In this respect, see attached a copy of the order of court dated 2 May 2018 marked as Annexure CHRONOLOGY OF KEY EVENTS SHOWING FBAR S COMPLIANCE WITH EIA REGULATIONS 3.1 Key Events Before the Submission of the FBAR on 12 October It is necessary to set out a chronology of relevant events and documents in order to demonstrate that the FBAR complies with all legal requirements and that all of the DMR s queries on the FBAR have been adequately addressed From August 2016 until the submission of the FBAR to the Respondent on 12 October 2017, over a period of a year, EMC and its EAP, J&W, engaged extensively with the Respondent, I&APs and organs of state with an interest in the matter with respect to EMC s environmental authorisation application. These engagements are fully set out in Annexure 8 hereto, which includes the minutes of meetings, copies of correspondence, copies of presentations made and the like attached as Annexures 8(A) to 8(M). Over this period, EMC addressed all of the DMR s queries on the FBAR. These documents are further indicative of engagements with other state departments including inter alia the Principal Inspector of Mines, the DWS and the Council for Geoscience The comments of the Respondent, I&APs and organs of state with an interest in the matter are included in the Comments and Response Report under Appendix F.7 of the FBAR, as well as under Appendix F.9 of the FBAR, available at

21 With respect to I&APs, EMC and its EAP, J&W, have fully complied with all of its public participation legal obligations. In this respect, EMC has provided all relevant information to all I&APs and it has provided all I&APs with the statutorily prescribed timeframe to comment thereon. In this respect, the following is of relevance: the Consultation Basic Assessment Report ( CBAR ), EMPr and Closure Plan were submitted for authority and public review from 3 April 2017 to 7 May At the request of Gold Fields Limited ( Gold Fields ), a registered I&AP and the owner and operator of South Deep Mine, which is directly adjacent to Ezulwini, the public participation process was extended to 21 May I&APs were therefore provided with 48 days to comment on the CBAR, rather than the statutorily specified period of 30 days. See in this respect Annexure 8(H) ; substantial changes were made to the reports and to the specialist studies mainly due to comments from I&APs. A request for a 50-day extension of the basic assessment process in terms of Regulation 19(1)(b) of the EIA Regulations was applied for on 13 June 2017, to allow for new information to be added and for amendments to be made to the CBAR, EMPr and Closure Plan. The DMR granted this extension in a letter dated 28 June The revised CBAR was then made available for a second public review period from 16 August 2017 to 15 September 2017 in terms of Regulation 19(1)(b) of the EIA Regulations, with the written consent of the DMR. See in this respect Annexures 8(I) and 8(J) ; and on 17 July 2017, a further extension of the basic assessment process of 2 months in terms of Regulation 3(7) of the EIA Regulations was applied for. This extension was approved by the DMR on 7 August See in this respect Annexures 8(K) and 8(L) In summary, EMC placed all of the comments and issues raised by I&APs and organs of state during the extended comment periods before the competent authority in the FBAR. Even the comments received from Gold Fields after the

22 expiration of the second comment period on the revised CBAR, were supplied to the Respondent Key Events After the Submission of the FBAR on 12 October Regulation 17 of the EIA Regulations places an obligation on the DMR s Regional Manager, as the competent authority, to check that an environmental authorisation application meets the formal requirements set out in the EIA Regulations. No indication was received from the DMR that EMC s FBAR, submitted in support of its environmental authorisation on 12 October 2017, did not comply with these formal requirements EMC, Sibanye and J&W further engaged with the DMR following the submission of the FBAR on 12 October. The below chronology of events is relevant in this regard On 7 December 2017, Sibanye attended a meeting of the Government Task Team for Mine Closure and Water Management (also called the GTT ) (the DMR, DWS and the Council for Geoscience) where Sibanye and J&W discussed EMC s environmental authorisation application with the attendees. See attached the minutes for the meeting, marked as Annexure 9. As the name suggests, the Government Task Team for Mine Closure and Water Management facilitates solutions and decision-making on water management and related issues as well as the implementation of safe and sustainable mine closure options within mining areas in South Africa. Accordingly, based on this role, the Government Task Team s input with respect to EMC s environmental authorisation application included, but was not limited to, the consideration of the potential impacts of Ezulwini s rewatering, particularly from a regional perspective On 8 February 2018, Sibanye addressed a letter to the Regional Manager, a copy of which is attached and marked as Annexure 10, wherein Sibanye confirmed that, following the meeting with the Government Task Team on 7 December 2017, there had been no formal information requests from the DMR pursuant to its

23 consideration of the FBAR. The DMR did not respond to Sibanye s letter of 8 February On 19 February 2018, the statutorily prescribed 107-day period ended without a decision being made or communicated to EMC on the grant or refusal of its environmental authorisation application In light of there being no decision, on 21 February 2018, J&W sent a letter to the DMR, a copy of which is attached and marked as Annexure 11. In this letter, J&W confirmed that: on receipt of the FBAR, the DMR did not inform EMC or J&W that the FBAR did not comply with the formal requirements in terms of Regulation 17 of the EIA Regulations, and as such, J&W assumed that the application complied with the formal requirements; based on the date of submission of the FBAR on 12 October 2017, the DMR should have issued a decision on the application by 19 February 2018, which it had not done; and no formal requests for further information had been received from the DMR or the commenting government authorities since the application was submitted on 12 October J&W stated that they had been informed on 19 February 2018 by the DMR that the delay was due to outstanding comments from the DWS and the Council for Geoscience. Since the Regional Manager was required to consult with and obtain comments from these state departments, which comments were due within 30 days of receipt thereof, J&W requested that the DMR obtain these comments from these authorities as a matter of urgency DMR Information Request of 22 February 2018 and EMC s Responses thereto On 22 February 2018, i.e. 3 days after the date on which the Respondent s decision was due, the Respondent sent a letter with 21 information requests to

24 24 EMC, although the letter is dated 15 February 2018 ( DMR Information Request ). The DMR Information Request is attached and marked as Annexure 13. In this respect, the from the DMR to the Applicant and J&W dated 22 February 2018 which attaches the DMR Information Request is further attached and marked as Annexure On 26 February 2018, in response to the DMR Information Request, Sibanye wrote an initial letter of response, a copy of which is attached and marked as Annexure 15 ( EMC s Initial Response ). In EMC s Initial Response, Sibanye: requested information as to the specific statutory provisions the DMR relied on for purposes of its 21 information requests; reiterated that the submission of the FBAR followed a long and comprehensive assessment and public participation process, in which the DMR was constantly included; denied the allegation that the FBAR failed to meet the prescribed minimum requirements in the EIA Regulations; reminded the Regional Manager of Regulation 17 of the EIA Regulations, which requires the DMR to check the application for compliance with the EIA Regulations upon receipt of the application; and requested a response from the Regional Manager within 5 business days of the date of the letter There was no response from the DMR to EMC s Initial Response On 15 March 2018, EMC s attorneys of record, Warburton Attorneys, sent a letter which addressed the legal aspects of the DMR Information Request, a copy of which is attached and marked as Annexure 16 ( Warburton Response ). The Warburton Response: asserted that the FBAR, as submitted to the DMR on 12 October 2017, complies with the minimum requirements prescribed in the EIA Regulations and already contains much of the information requested in the DMR Information Request;

25 stated that there is no statutory or legal basis for the further information requested in the DMR Information Request; stated that certain of the further information requested by the DMR is impossible for EMC to obtain, which suggests that the DMR has already unlawfully prejudged EMC s application; stated that the DMR Information Request was received by EMC on 22 February 2018, after the date prescribed in the EIA Regulations for a final decision to be reached on EMC s application, namely 19 February 2018, and, accordingly, the procedure envisaged by the DMR s request for further information fell outside the procedure contemplated in the EIA Regulations; and provided a response to certain of the 21 specific information requests Also on 15 March 2018, as an attachment to the Warburton Response, J&W answered the technical aspects of the information requests in the DMR Information Request, which response is dated 12 March 2018 and is attached and marked as Annexure 17 ( J&W Response ). The J&W Response states that the FBAR and its associated appendices comply with the prescribed minimum requirements set out in Appendix 1 of the EIA Regulations. The J&W Response further provides an independent response to all 21 information requests in the DMR Information Request In summary, the Warburton Response, read together with the J&W Response, provided a response to all 21 information requests in the DMR Information Request. 4. PROCESS FOLLOWED BY THE APPELLANT TO OBTAIN A WULA 4.1 On 12 October 2017, EMC applied to the DWS in terms of section 50 of the National Water Act 36 of 1998, as amended ( NWA ) for an amendment to its WUL to remove

26 26 certain water uses from its existing WUL (Licence Number 08/C23D/ABEFGJ/2836), which water uses will no longer apply after pumping ceases. The FBAR, EMPr and Closure Plan are all supporting documents to the WULA application. 4.2 The WULA application is attached as Appendix I to the FBAR, which FBAR and appendices thereto are available at: On 3 May 2018, J&W contacted the Regional Case Officer at DWS, Ms Jeanette Nyama, and enquired about the status of EMC s WULA application. Ms Nyama telephonically advised J&W as follows: the DWS received comments from the Council for Geoscience; the DWS does not require any further information to continue processing the amendment application; the WULA is being reviewed by DWS s geohydrologist; and Ms Nyama is expecting comments from DWS s Head Office soon, after which Ms Nyama will present the application to the Water Use Authorisation Assessment Advisory Committee ( WUAAAC ) for a final decision to be made. 5. PROCESS TO BE FOLLOWED BY THE APPELLANT TO OBTAIN A CLOSURE CERTIFICATE 5.1 The Application for a Closure Certificate in terms of section 43 of the MPRDA Activity 22 of Listing Notice 1 identifies the relevant activity as follows: The decommissioning of any activity requiring (i) a closure certificate in terms of section 43 of the [MPRDA] (ii) Section 43(3) of the MPRDA provides, in relevant part, as follows:

27 27 The holder of a prospecting right, mining right, retention permit, mining permit, or previous holder of an old order right or previous owner of works that has ceased to exist as the case may be, must apply for a closure certificate upon - (a) (b) (c) (d) the lapsing, abandonment or cancellation of the right or permit in question; cessation of the prospecting or mining operation; the relinquishment of any portion of the prospecting of the land to which a right, permit or permission relate; or completion of the prescribed closing plan to which a right, permit or permission relate. [own emphasis] Activity 22 in Listing Notice 1 does not trigger section 43 of the MPRDA. Rather, it is section 43 of the MPRDA that triggers listed Activity 22 of Listing Notice 1. Further, any one of the four subsections in section 43(3) triggers the need for a closure certificate application because of the use of the word or J&W indicated in the FBAR that application for a closure certificate will be made in terms of section 43(3)(d) of the MPRDA. In the FBAR Synopsis on page iv and in the Report Context and Objectives on page 38 it is specifically stated that: [i]n addition to this, EMC must submit a partial mine closure application to the DMR in terms of Section 43(3)(d) of the MPRDA for the termination of underground workings at Sibanye Gold: EMC operation. Section 43(3)(d) states that a mining right holder must apply for closure on completion of the prescribed closing plan to which a right, permit or permission relate (MPRDA) Section 43(4) of the MPRDA further provides that: [a]n application for a closure certificate must be made to the Regional Manager in whose region the land in question is situated within 180 days of

28 28 the occurrence of the lapsing, abandonment, cancellation, cessation, relinquishment or completion and must be accompanied by the required information, programmes, plans and reports prescribed in terms of [the MPRDA] and [NEMA]. [own emphasis] Accordingly, EMC intends to submit its application for a closure certificate on the basis of section 43(3)(d) of the MPRDA. Based on the Closure Plan having being completed on 12 October 2017, EMC has at least until 3 July 2018 to submit its application to the DMR in terms of section 43 of the MPRDA, namely within 180 working days as per the definition of days in the MPRDA. 5.2 Partial Closure of a Mine An applicant is entitled to a closure certificate as contemplated in section 43 of the MPRDA provided its application for such a certificate satisfies the statutory requirements. Should such a compliant application be submitted for the partial closure of a mine, there is no reason why a closure certificate for that part of the mine that is to be closed cannot be granted When submitted, EMC s application, in terms of section 43 of the MPRDA, for the partial closure of EMC s underground operations, will satisfy the necessary requirements contained in section 43 of the MPRDA, read together with section 24R of NEMA, to the extent that such section is applicable. EMC will then be entitled to be issued with a closure certificate in respect of the closure of Ezulwini s underground workings only. 6. LEGAL GROUNDS OF APPEAL IN RESPONSE TO THE RESPONDENT S NEGATIVE ENVIRONMENTAL AUTHORISATION DECISION 6.1 It is submitted that the Regional Manager s decision to issue a negative environmental authorisation is incorrect and unreasonable and this is fully explained with reference to each of the reasons provided by the Regional Manager in his decision of 30 April The 12 specific reasons given by the Regional Manager are

29 29 individually responded to in section 8 of this appeal. EMC s responses show that, based on the factual circumstances and the content of the information before the Regional Manager, the Regional Manager erred in each and every reason provided. Each of EMC s responses to the Regional Manager s reasons are furthermore linked back to and explained with reference to the four main legal grounds of appeal set out hereunder. 6.2 Ground I: The Appellant respectfully submits that the Regional Manager erred by taking irrelevant, and in certain instances factually or legally incorrect, considerations into account and by not properly considering and/or not giving due weight to relevant considerations when issuing the negative authorisation. 6.3 Ground II: The Appellant respectfully submits that the decision of the Regional Manager is not rationally connected to: the purpose of the empowering provision in section 24 of NEMA; and the information before the Regional Manager. 6.4 With respect to Ground II, rational connection' has been judicially considered by the Supreme Court of Appeal in Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and Others 2007 (1) SA 576 (SCA) to mean that: there had to have been a rational objective basis justifying the connection made by the [decision-maker] between the material before him and his decision. (para 29) 6.5 Ground III: The Appellant respectfully submits that the Regional Manager failed to comply with his peremptory duties in terms of section 24O of NEMA which sets out the criteria for decision-making, in that: the Regional Manager failed to comply with NEMA, in non-compliance with section 24O(1)(a) of NEMA. It is submitted that the Regional Manager failed to fully

30 apply the principles as set out in section 2 of NEMA in his decision. In this regard, the following: sustainable development requires the consideration of all relevant factors including ; section 2(4)(b) of NEMA refers to the selection of the best practicable environmental option ; and section 2(4)(i) of NEMA requires that the social, economic and environmental impacts of activities, including disadvantages and benefits must be considered and decisions must be appropriate in light of such assessment ; the Regional Manager failed to take into account all relevant factors, which may include where appropriate, any feasible and reasonable alternatives to the activity which is the subject of the application that may minimise harm to the environment [own emphasis], in non-compliance with section 24O(1)(b)(iv) of NEMA; the Regional Manager failed to take into account the information contained in the application form, reports, comments, representations and other documents submitted, as prescribed in terms of NEMA, to the competent authority, in connection with the application, in non-compliance with section 24O(1)(b)(vi) of NEMA; the Regional Manager failed to take into account any comments received from organs of state that have jurisdiction over any aspect of the activity which is the subject of the application in non-compliance with section 24O(b)(vii) of NEMA. We note that an organ of state that may have jurisdiction over any aspect of the operation or activity forms part of the definition of an I&AP in section 1 of NEMA; the Regional Manager failed to take into account the comments of any organ of state charged with the administration of any law which relates to the activity in question in non-compliance with section 24O(c) of NEMA; and

31 the Regional Manager failed to consult with every State department that administers a law relating to a matter affecting the environment when considering an application for an environmental authorisation in noncompliance with section 24O(2). Since the environmental authorisation application is for a mining-related activity, this request for comment must be submitted by registered mail to the Director-General or provincial head of department of the State department in terms of section 24O(2A) of NEMA. Moreover, in terms of section 24O(3) of NEMA [a] State department [so] consulted must submit comment within 30 days from the date [of the] request[] [to do so]. 6.6 With respect to Ground III above, section 24O of NEMA uses the word must which denotes a peremptory duty on the part of the Regional Manager. This was confirmed in the Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC) ( Maccsand ) at paragraph 12 where the Constitutional Court held: In peremptory terms section [24O of NEMA] requires the [decisionmaker] to comply with NEMA and take into account factors enumerated in the section when determining an application for an authorisation. [own emphasis] 6.7 Ground IV: The Appellant respectfully submits that the process followed by the Regional Manager in considering EMC s application is procedurally incorrect in that the Regional Manager did not comply with the process-related requirements prescribed in the EIA Regulations in that the Regional Manager: did not comply with the statutory timeframes; did not consult and obtain comments on the application from the relevant state departments, a peremptory duty, and obtain these comments within the statutory period of 30 days provided for such input, before making the decision; and