ROAD PAVEMENTS FORUM

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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

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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

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Some quarrying statistics

• Period 2004
• DME aggregate volumes _at_ 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.

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Some Definitions

• Aggregate - different sized stone used in the
  building, construction and road-making
  industries.
• Sand - finer aggregate components, usually lt 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
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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)

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• Water Act (1957)

• Explosives Act (1965)

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• Atmospheric Pollution Prevention Act (1965)

?

• National Road Act (1971)

• Conservation of Agricultural Resources Act
  (1983)

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• Environment Conservation Act (1989)

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• Minerals Act (1991)..

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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).

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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
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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.

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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.

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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.

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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

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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

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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.
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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

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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

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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...

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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.

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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.

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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

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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 ...

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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

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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

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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

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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.

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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!

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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 - EMPs, Rehabilitation
  funds, Closure plans
• Contribution to community - Community development
  and Social responsibility
• Stable workforce - Long term employment,
  Pensions, Medical Aid, training

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Weathered Dolerite
Fresh Dolerite
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Other Considerations
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Other Considerations
Continuous Environmental Performance
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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.
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Contractor Quarry
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Contractor Quarry
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Top Commercial Quarry
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Employee Training
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Community investment
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Mine Rehabilitation
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Rehabilitation in progress
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Rehabilitation in progress
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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

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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.

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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.

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Thank You