Presentation Endangered Wildlife Trust Federation for a Sustainable - - PowerPoint PPT Presentation

Appellants’ Appeal Presentation

Endangered Wildlife Trust Federation for a Sustainable Environment Mpumalanga Landbou/Agriculture

Advocate Aymone Du Toit

• Underground mining footprint ± 1 200 hectares on

properties: Goedgevonden 95 HT; Portion 1 of Kromhoek 93 HT; Remainder of Kromhoek 93 HT; Portion 1 of Yzermyn 96 HT; and Zoetfontein 94 HT

• Surface infrastructure ± 22.4 hectares on Portion 1 of

Yzermyn 96 HT

• Project would involve: extraction, crushing, screening and

stockpiling of coal product, and transportation of coal product for sale

• Estimated life of mine: 15 years

Atha’s proposed Yzermyn underground coal mine in in Wakkerstroom Magisterial District, Mpumalanga

2

Locality

3

Plotted using GPS coordinates taken from Atha’s WUL

Heyshope Dam

Proposed mine

Atha’s proposed Yzermyn mine

4

Annexure C to Appellants’ Amplified Appeal (File 2 pg 1468): Figure from Atha’s Integrated Water and Waste Management Plan pg 48

Context of proposed mine

Footage taken during site-flyover on 16 February 2018

[site-flyover footage: 2-3 minutes]

5

Mawandlane River

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

6

Mawandlane River

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

7

Mkusaze River

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

8

Context of the proposed mine (cont.)

• Properties currently used for commercial grazing of

livestock (sheep and cattle) (EIAR File 1 pg 231)

• Several subsistence farmers on proposed mining site –

has good to excellent grazing capacity (EIAR File 1 pg 231)

9

Amplified Grounds of Appeal para 107 File 2 pg 1354

Commercial l grazin ing of liv livestock (sheep and cattle le) )

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

10

Commercial l grazin ing of liv livestock (sheep and cattle le) )

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

11

Context of the proposed mine (cont.)

• Approx. 8 homesteads on proposed mine site
• Occupied by low-income families with between 8 and 30

people living in each homestead

• Households generally rely on:
• limited income from a single family member who works on

host farm

• social grants
• This community ‘is vulnerable from a livelihood perspective, as

they do not have access to finances or other resources should their current income come to an end (i.e. farm work) or access to natural resources, such as water and grazing land, be prevented’. (Socio-Economic Study conducted by Atha’s first Environmental Assessment Practitioner File 3 pgs 1738-9)

12

Amplified Grounds of Appeal para 108 File 2 pgs 1354-5

Homesteads on the proposed min ine sit ite

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

13

Homesteads on the proposed min ine sit ite

14

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

Homesteads on the proposed min ine sit ite

15

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

Water-use licence (WUL)

• 7 July 2016: DG of DWS issued WUL to Atha in terms of

s41 of National Water Act (NWA) for proposed Yzermyn mine

• Water uses authorised:
• taking water from water resource (s21(a) of NWA): abstraction
• f groundwater from 2 specified supply boreholes

16

Amplified Grounds of Appeal para 26 File 2 pgs 1312-4

Water uses authorised (cont.):

• impeding/diverting flow of water in watercourse (s21(c) of NWA)

and altering bed, banks, course or characteristics of watercourse (s21(i) of NWA) pursuant to construction and operation of mine and associated infrastructure, including:

• construction and operation of underground mining activities and voids
• n various wetland systems
• partial destruction of wetland system pursuant to construction and
• peration of pollution control dam system
• construction and operation of surface infrastructure (adit, workshop

platform, coal stockpiles, etc.) within 500m of various wetland systems

• construction and operation of various pipelines and clean- and dirty-

water flo-drains (drainage systems) through and/or within 500m of various wetland systems

• construction and operation of various berms (artificial ridges or

embankments) and canals through and within 500m of various wetland systems

• construction and operation of 2 access roads through and/or within

500m of various wetland systems

17

Amplified Grounds of Appeal para 26 File 2 pgs 1312-4

Water uses authorised (cont.):

• discharging waste or water containing waste into water

resource through pipe, canal, sewer or other conduit (s21(f) the NWA) and disposing of waste in manner which may detrimentally impact on water resource (s21(g) of NWA), including:

• discharging water containing waste (treated to specified quality) into

wetland system

• disposing and storing contaminated water in pollution control dam on

wetland system

• construction and operation of sewage treatment plant on wetland

system

• construction and operation of wastewater treatment plant within 500

metres of various wetland systems

• use of pollution control dam-process water for dust suppression on

roads within mining area within 500 metres of various wetland systems

18

Amplified Grounds of Appeal para 26 File 2 pgs 1312-4

Water uses authorised (cont.):

• removing,

discharging

• r

disposing

• f

water found underground (s21(j) of NWA), in particular pumping out groundwater flowing into the adit and underground workings situated on various wetland systems

19

Amplified Grounds of Appeal para 26 File 2 pgs 1312-4

Strategic Importance and Sensitivity of the Affected Water Resources

Advocate Aymone Du Toit

Mabola Protected Environment (MPE), 2014

• Declared: 22 January 2014

in terms of National Environmental Management: Protected Areas Act, 2003

• Mine properties within

MPE: Goedgevonden 95 HT; Portion 1 of Kromhoek 93 HT; Remainder of Kromhoek 93 HT

• Mine properties outside of

and adjacent to MPE: Portion 1 of Yzermyn 96 HT; Zoetfontein 94 HT (omitted from MPE in final declaration stage)

21

Annexure H2 to Appellants’ Amplified Appeal (File 3 pg 1715): Figure prepared by Vanessa Stone, WWF-SA

Amplified Grounds of Appeal para 29.15 File 2 pgs 1317-8

22

National Freshwater Ecosystem Priority Area, 2011 (NFEPA)

23

Annexure H to Appellants’ Amplified Appeal (File 3 pg 1711): Figure prepared by Vanessa Stone, WWF-SA

National Freshwater Ecosystem Priority Area (NFEPA)

24

• System of classification developed by several organisations working with DWA (now

DWS) and DEA

• Assegaai River: B ecological category (i.e. largely natural) FEPA river (NSS pgs 209 and

210; SAS 2015 assessment File 2 pg 1016)

• River FEPAs:
• rivers still in relatively good ecological condition occurring in healthy

catchments - should remain in relatively good condition to contribute to national biodiversity goals and support sustainable use of water resources

• surrounding land and stream networks need to be managed to maintain good

condition of river reach (NFEPA Atlas p. 14)

• 6 wetland FEPAs (of A/B ecological category, i.e. natural or largely natural) in close

proximity to proposed mine (some within 1km of underground mine area) (NSS pgs 22 and 209), including: CVB5 - within 500m of underground mine boundary (SAS 2015 assessment File 2 pg 1016)

• Wetlands FEPAs: must be maintained if in good ecological condition and

rehabilitated to best attainable ecological condition if in substandard ecological condition (NFEPA Atlas p. 14)

Amplified Grounds of Appeal paras 29.11-2 File 2 pgs 1316-7

Strategic Water Source Area (SWSA) Project

25

Amplified Grounds of Appeal para 29.13 File 2 pg 1317; Annexure DML1 to Affidavit of David Le Maitre (CSIR) (File 4 pg 2467), read with Affidavit para 12 File 4 pg 2463

Proposed mine within Enkangala Drakensberg SWSA

SWSA Project (cont.)

26

• Council for Scientific and Industrial Research (CSIR) have been working since

2011 on a project to identify SA’s SWSAs

• Project reference group includes DWS, DEA, South African National Biodiversity

Institute (SANBI), Water Research Commission (WRC), SANParks and WWF-SA

• First report identifying SWSAs released March 2013; second report released

March 2018

• What are SWSAs? Areas of land that:

a) supply a disproportionate (i.e. relatively large) quantity of mean annual surface water runoff in relation to their size and so are considered nationally important; or b) have high groundwater recharge and where the groundwater forms a nationally important resource; or c) both (a) and (b) (March 2018 report pg 28)

(Affidavit of David Le Maitre paras 4-7 File 4 pgs 2460-1)

SWSA Project (cont.)

27

CSIR’s March 2018 report (pg 28):

• International experience shows managing and protecting water source areas very cost-

effective means of delivering continued supply of good quality water to users - in situ and downstream

• Extremely relevant in SA:
• highly variable climate and rainfall: uneven distribution of water resources – just

8% of country produces 50% of the water

• looming water supply crisis: 98% of SA’s surface water already developed, demand
• utstripping supply in most catchments, and growing water quality problem
• 2015-2016 drought in SA’s summer rainfall areas; current drought in SA’s winter

rainfall areas (2014/15 onwards)

• Managing and protecting SWSAs:
• key way to meet increasing water demands of SA (quality and quantity) – because

can ensure catchments and aquifers provide sustained flows of high quality water

• incorporated in DWS’s Draft National Water and Sanitation Master Plan (published

for comment 13 November 2017)

(Affidavit of David Le Maitre paras 8-11 File 4 pgs 2461-3)

SWSA Project (cont.)

28

CSIR principal researcher David Le Maitre (in Affidavit deposed to for this appeal) on importance of mine area as SWSA:

• Proposed mine area is headwaters of water-generating streams and rivers
• Entire downstream section of river benefits from healthy headwaters because

ecology of headwaters, especially wetlands, ensures quality of water in whole system more than any other part of river system

• Assegaai River flows into Heyshope Dam, from which water is diverted into Vaal

Water Supply System via inter-basin transfer, primarily to supply Eskom power stations

• Vaal Water Supply System also supplies water to SA’s economic hub, Gauteng
• Downstream of Heyshope Dam, Assegaai River flows into Usutu River
• Usutu River flows through Swaziland and, after joining Pongola River, flows into

Mozambique, where it is known as Maputo River

• Health of Usutu River System relevant to SA’s international obligations to

Swaziland and Mozambique

(Affidavit of David Le Maitre paras 14-15 File 4 pgs 2464-5)

SWSA Project (cont.)

29

CSIR’s March 2018 report investigated spatial overlap between SWSAs and coal fields (pgs 155-7):

• “There are substantial coal reserves in areas that do not overlap with

SWSAs at all”- “Nationally, the total area of the overlap … is equivalent to just 8% of the total area of the coalfields”

• “The second most extensive overlap between the coals fields and SWSAs is

the Enkangala Grasslands at nearly 42% … The Enkangala Grasslands has already been identified as a critical water-energy conflict area”

• “There is potentially a large amount of coal that could be mined instead of

extending the existing mines, or opening new mines, in those SWSAs which have been significantly affected already or could be adversely affected by further mining”

• In particular, extent of overlap between Enkangala Drakensberg SWSA and

Utrecht coal field, within which Atha intends to mine, is only 15.5%

(Affidavit of David Le Maitre para 16 File 4 pgs 2465-6)

Wakkerstroom/Luneberg Grasslands Endangered Ecosystem

30

Annexure H3 to Appellants’ Amplified Appeal (File 3 pg 1716): Figure prepared by Vanessa Stone, WWF-SA

Proposed mine area within Wakkerstroom / Luneberg Grasslands - ‘Endangered’ ecosystem in terms of National Environmental Management: Biodiversity Act, 2004

Amplified Grounds of Appeal para 29.16 File 2 pg 1318

Mining and Biodiversity Guideline (MBG), 2013

31

Figure prepared by Vanessa Stone, WWF-SA

• Published by DEA, DMR,

Chamber of Mines, SA Mining and Biodiversity Forum and SANBI

• Category B areas: “viewed as

necessary to ensure the protection of biodiversity, environmental sustainability, and human well-being” (MBG pg 29)

Amplified Grounds of Appeal para 29.17 File 2 pg 1318

Mpumalanga Biodiversity Sector Plan, 2014

32

Annexure W to Appellants’ Amplified Appeal (File 3 pg 1953B): Figure prepared by Vanessa Stone, WWF-SA

Mpumalanga Biodiversity Sector Plan (MBSP)

33

• Compiled

by Mpumalanga Tourism and Parks Agency in association with Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs

• Evolving conservation and planning tool, first published 2013
• After declaration of MPE, MBSP classification of proposed mine

area is as follows:

• Areas comprising MPE: protected environment areas
• Zoetfontein 94 HT and Portion 1 of Yzermyn 96 HT: “Ecological

Support Area: Protected Area Buffer zone” - “areas around protected areas where changes in land-use may affect the ecological functioning or tourism potential of the adjacent protected area” (MBSP pg 61)

Amplified Grounds of Appeal para 29.17-8 File 2 pgs 1318-9

The Water Resources

Advocate Aymone Du Toit

Water Quality

• Quality of surface and groundwater in proposed mine area has

been monitored and determined to be good with very little anthropogenic impacts (Delta h pg 9; IWWMP pg 3)

• Preliminary

reserve determination undertaken for W51A Quaternary Catchment (DWS, 20 April 2016): groundwater quality in catchment is ideal water quality, suitable for lifetime use with no adverse health effects (Revised GCS review, File 3 pg 1694)

35

Wetlands within proposed mine area

36

Annexure C1 to Appellants’ Amplified Appeal (File 2 pg 1469): Figure from SAS 2015 assessment pg 57

Surface and underground areas of proposed mine coincide with several wetlands

Wetlands within proposed mine area

37

Annexure S to Appellants’ Amplified Appeal (File 3 pg 1953A): Figure from SAS 2015 assessment pg 58

The surface and underground areas of the proposed mine coincide with several wetlands

Wetlands: Present Ecological State (‘PES’)

• Wetlands in proposed underground mining area: Category A PES
• natural and unmodified
• existing impacts on wetlands caused by, among other things, alien

invasive species and cattle tracks very limited and minor

(NSS pg 196; SAS 2015 assessment File 2 pgs 1001 & 1041)

• Wetlands in proposed surface infrastructure area: Category C PES
• moderately modified, but natural habitat remains predominantly intact

(SAS 2015 assessment File 2 pgs 1001 & 1041)

• SAS newly-assessed wetlands within 500m of surface and/or underground

mining areas (called S11 and CVB5): Category B PES

• largely natural with few modifications
• slight change in ecosystem processes discernible
• small loss of natural habitats and biota may have taken place

(SAS 2015 assessment File 2 pgs 1001 & 1041)

38

Amplified Grounds of Appeal paras 29.3-5 File 2 pg 1315

Wetlands: PES

39

Figure from SAS 2015 assessment pg 70

The surface and underground areas of the proposed mine coincide with several wetlands

[SP to insert photo of a wetland/s to depict PES]

40

Photo taken in the proposed mine area during Appellants’ Site Visit – 16 February 2018

41

Wetlands: Ecological Importance and Sensitivity (‘EIS’)

• Wetlands in proposed underground mining area and CVB5 (SAS newly-assessed wetland

within 500m of surface and/or underground mining areas): ‘VERY HIGH’ (Category A) EIS

• wetlands ecologically important and sensitive on national or even international

level

• biodiversity of wetlands likely very sensitive to flow and habitat modifications
• wetlands play major role in moderating quantity and quality of water of major

rivers

(NSS pgs 199 and 100; SAS 2015 assessment File 2 pgs 1002 & 1056)

• Wetlands in proposed surface infrastructure area: ‘MODERATE’ (Category C) EIS
• ecologically important and sensitive on provincial or local scale
• biodiversity not usually sensitive to flow and habitat modifications

(SAS 2015 assessment File 2 pgs 1002 & 1056)

• S11 (SAS newly-assessed wetland, as above): ‘HIGH’ (Category B) EIS
• ecologically important and sensitive
• biodiversity may be sensitive to flow and habitat modifications

(SAS 2015 assessment File 2 pgs 1002 & 1056)

Amplified Grounds of Appeal paras 29.6-8 File 2 pgs 1315-6

42

Wetlands: Provision of Ecological and Sociocultural Services

Figure from SAS 2015 assessment pgs 72-3

Springs within proposed mine area

43

Figure from NSS ecological assessment pg 195

Rivers/streams within proposed mine area

44

Annexure DML2 to Affidavit of David Le Maitre (CSIR) (File 4 pg 2468): Figure from NSS ecological assessment pg 141

Atha’s Specialist Studies re: Hydrogeological and Environmental Impacts

• ver Life of Mine

and Post-closure

Advocate Aymone Du Toit

46

Hydrogeological and Environmental Impacts

• ver Life of Mine and Post-closure
• 1. Dewatering of aquifers
• 2. Groundwater contamination

And consequent impacts on surface water resources (rivers, streams, wetlands and springs), and associated ecology

47

Dewatering of Aquifers (cont.)

Delta h: “The ensuing cone of dewatering due to mine inflows will capture groundwater, which would have otherwise contributed to spring discharges, leakages along hill slopes, wetlands, river baseflow or to deeper regional groundwater flow”.

(Delta h pg vi; own emphasis)

48

Dewatering of Aquifers (cont.)

Delta h: “It is expected that the groundwater inflows into the proposed underground mine voids will change the volume of groundwater in the aquifer storage (lowering of water table), especially in the deeper fractured aquifer and to a lesser degree in the shallow weathered aquifer”

Impact Rating:

• “Highly likely to occur.”
• “Localized within site boundary.”
• “Minor reduction to complete cessation of spring yields depending on

location.”

• “Long term beyond mine closure with a permanent lowering of the water

table unless the mine voids are backfilled or sealed.”

• “Of minor to moderate severity with a drawdown of the water table in the

vicinity of the mine.”

(Delta h para 8.2.1, pg 54; all emphasis own)

49

Dewatering of Aquifers (cont.)

Delta h: “It is expected that the groundwater inflows into the proposed underground mine voids will change the deep regional groundwater flow regime.” Impact Rating: “Highly likely to occur.” “Widespread and will impact beyond the site boundaries (by definition of regional flow).” “Minor reduction of baseflow for the tributaries of the Assegaai River (maximum

• f total inflow volumes if evapotranspiration close to river banks is neglected, i.e.

a part of the abstracted water would under natural conditions be lost to evapotranspiration and not contribute to baseflow).” “Long term beyond mine closure with a gradual increase of groundwater baseflow (i.e. reduction of impact) once mine voids are flooded.” “Of minor severity with a partial loss of baseflow for the tributaries of the Assegaai River.”

(Delta h para 8.2.1, pg 54; all emphasis own)

50

Dewatering of Aquifers (cont.)

SAS 2015 assessment identified as an impact on “wetland hydrological function” during operational phase:

• “Dewatering of wetland habitat downgradient of mining

activities, leading to loss of water within wetland habitat and altered hydrological patterns”

• “Formation of groundwater cone of dewatering, leading to

reduced recharge of wetland resources”

• “HIGH” impacts on study-area wetlands both unmitigated and

with mitigation

(SAS 2015 assessment File 2 pgs 1074-6)

51

Groundwater Contamination

SAS 2015 assessment: “The ATHA Yzermyn Coal Project is located within an extremely sensitive area containing extensive wetlands which are presently in a largely natural

• condition. … The potential for post-closure decant of water from the

underground mine void via the adit and/or unsealed exploration boreholes (Delta H, 2014) is of particular concern, as this will have a long term effect

• n surface water quality of not only on the wetlands within the study area,

but also on aquatic resources within the greater catchment with special mention of the Assegaai River. Should it be considered economically feasible to treat the decant water post-closure until water quality stabilizes, which could take many decades, to pre-mining water quality standards in such a way as to support the post closure land use, which is envisaged to be protected wilderness, the project would be considered feasible, although the impacts on the wetland resources would remain high.”

(SAS 2015 assessment File 2 pgs 1081-2; own emphasis)

52

Groundwater Contamination (cont.)

Delta h:

• “Post-closure the mine voids are likely to be flooded within 45 years with

potential decant thereafter” (pg vi)

• “The potential post closure impacts of decant from the underground mine

voids on the groundwater quality are:

• Highly likely to occur.
• Widespread beyond site boundary (regional). Localised if mitigated by

treatment of decant.

• Long-term, with substantial increases of pollutant concentrations in

surface waters beyond closure. Depending on mitigation measures, i.e. treatment system, limited increases of pollutant concentrations beyond closure.

• The intensity of the impact is likely to be a substantial deterioration in the

ambient surface water quality if not mitigated by treatment of decant. Depending

• n

the treatment method, the impact can be mitigated/reduced to a minor to moderate intensity.” (pg 69)

(own emphasis)

Andrew Johnstone,

GCS Water & Environmental Consultants

DWS Letter

Advocate Aymone Du Toit

55

DWS Letter: 26 October 2015

• This letter obtained by CER through PAIA request
• On 26 October 2015, after public participation process closed and after

all specialist reports submitted including Delta h and SAS (2015), DWS wrote to Atha (File 3 pgs 1784 to 1788)

• “Dewatering was included in the WULA, but impacts and mitigation

measures have not been included”

• “The wetlands must be delineated into HGM Units based on ground-

truthing, not in NFEPA maps. Furthermore, both wetlands studies were concluded in winter. The studies are therefore not representative of summer months, and are therefore regarded as incomplete. Please submit a detailed study that is inclusive of summer months”

• “It is still unclear exactly how all the wetlands on site and within

500m are being fed. Without this knowledge, how can it be known if undermining may cause the wetlands above to dry up as a result

• f seepage into the underground mine?”

56

DWS Letter: 26 October 2015 (cont.)

• “There must not be net wetland loss for wetlands with PES of class A

and B”

• “You are …required to provide a detailed Rehabilitation Plan that has

input from Specialists in the various environmental issues”

• “DW902 forms for surface rights owners in the areas where mining is

proposed have not been submitted. Please include these in the application”

• “The WULA is not recommended in this sensitive area by this
• Department. The risk of future pollution to the natural system and

degradation of PES class A wetlands and rivers is seen as high and not acceptable. It is proposed that the consultants for the project present their integrated findings to the Specialists at DWS Head Office in Pretoria in the week of 9th to 13th November 2015”

• “This application is regarded as incomplete.

The applicant has 14 days from the date of receipt of this letter to submit outstanding information to this office”

57

Atha Letter 10 November 2015

On 10 November 2015 Atha responded (File 3 pgs 1789 to 1795)

• Submitted mitigation table Table 5-7 (File 3 pgs 1799 to 1873) - key

document and entirely deficient for reasons given by GCS

• Claimed SAS did delineate all wetlands based on ground-truthing

but this is incorrect (see Revised GCS Review File 3 pgs 1676 and 1677)

• Did not dispute that SAS wetland studies in single season only

(NSS study covered two seasons, but this report recommended that the mine should not proceed at all (NSS pg 269))

58

Atha Letter 10 November 2015 (cont.)

• Claimed wetlands are seep wetlands and not groundwater fed;

can easily be rehabilitated; only 12.10 ha of wetlands will be “temporarily destroyed”, drawdown will be like normal seasonal changes, groundwater will recover to pre-mining levels

• Claimed will be no net loss of wetlands – all will be rehabilitated
• Provided rehabilitation plan for surface area wetlands only
• Claimed DW902 forms not required for farms affected by

underground mining

• Referred to upcoming meeting with DWS officials on 13

November 2015 at which all would be finalised including waste storage and handling facilities, and design drawings

59

Conclusions to be drawn from this exchange

• After all specialist reports forming part of WULA

submitted (including Delta H and SAS 2015), DWS identified serious problems

• Atha provided some further information in attempt to

shore up gaps

• Gaps not addressed (Revised GCS Review File 3 pgs 1654 to

1655; and 1683)

• Atha has never referred to any subsequent substantive

specialist studies

(Amplified Appeal File 2 pgs 1358 to 1359)

Appellants’ Grounds of Appeal

Advocate Aymone Du Toit

61

First ground: Failure to take into account factors in s27(1)(c) and s27(1)(f) of NWA

Ss 27(1)(c) and 27(1)(f) of NWA: “In issuing a … licence a responsible authority must take into account all relevant factors, including – … (c) efficient and beneficial use of water in the public interest; and … (f) the likely effect of the water use to be authorised on the water resource and on other water users …”

• Proposed use of water would not be efficient and beneficial in the

public interest

• Likely effects on other water users will be negative and far-reaching

(Amplified appeal File 2 pgs 1320 to 1343)

62

Second ground: Failure to authorise Water Treatment Plant post-closure

• Both SAS (2015) and IWWMP say that Water Treatment Plant required

post-closure and Atha proposes this as mitigation measure in Table 5-7

• BUT WUL only authorises water treatment plant for operational phase –

volume of discharge authorised = 8 861m3/a (WUL in File 2 pgs 1398 and

1400) = anticipated discharge amount during operational phase (IWWMP pgs 152 to 156, in particular 156)

• 2 clearly anticipated water uses associated with mine therefore not

authorised:

• discharge of water containing waste into water resource (s21(f) NWA)
• disposing of waste in manner which may detrimentally impact on

water resource (s21(f) NWA)

• Authorisation of Water Treatment Plant during operational phase also

deficient being based on incomplete and inaccurate information

(Amplified appeal File 2 pgs 1343 to 1344)

63

Third ground: Failure to apply “precautionary” environmental principle of NEMA (and vulnerable ecosystems principle)

Principle in s2(4)(a)(vii) of NEMA requires – “That a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions” Constitutional Court*:

• Precautionary

principle requires authorities to insist

• n

adequate precautionary measures to safeguard against contamination

• f

underground water

• Precautionary principle “applicable where, due to unavailable scientific

knowledge, there is uncertainty as to the future impact of the proposed

• development. Water is a precious commodity; it is a natural resource that

must be protected for the benefit of present and future generations”

*Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 (6) SA (4) CC para 98

(Amplified appeal File 2 pgs 1344 to 1349)

64

Third ground: Failure to apply “precautionary” environmental principle of NEMA (and vulnerable ecosystems principle)

(Continued…)

In this instance, far-reaching negative impacts on ground and surface water,

BUT

• No specificity as regards precautionary measures
• No assessment of proposed mitigation measures
• This ought to have prevented granting of WUL
• See also principle in s2(4)(r) of NEMA – “Sensitive, vulnerable, highly

dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure” (own emphasis)

(Amplified appeal File 2 pgs 1344 to 1349)

65

Fourth ground: Grant of exemption in terms of GN 704 unjustifiable

Atha granted exemption from requirement in Regulation 4(b) of GN 704 (Regulations aimed specifically at protection of water resources in context of mining): “No person in control of a mine … may … carry on any underground … mining within a horizontal distance of 100 metres from any watercourse”

• Exemption therefore necessary for Atha to conduct mining below wetlands
• Exemption granted in terms of Regulation 3

But exemption granted on basis of inadequate and unassessed mitigation measures:

• Monitoring of wetlands
• Grouting
• Rehabilitation of wetlands
• Discharge of treated water into wetlands

SAS (2015) itself confirmed “HIGH” impact of dewatering on wetlands even with mitigation Granting of exemption defeats purpose of Regulations

(Amplified appeal File 2 pgs 1349 to 1352)

66

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

S27(1)(d) of NWA: “In issuing a … licence a responsible authority must take into account all relevant factors including … the socio- economic impact – (i) of the water use or uses if authorised; or (ii) of the failure to authorise the water use or uses”

(Amplified appeal File 2 pgs 1353 to 1358)

Socio-economic Impact: Employment

• Mine

will generate 576 employment

• pportunities

when fully

• perational (IWWMP pgs 237 and 238)

BUT

• No guarantee these will be local because of lack of skills:

“The majority of labour and employees are likely to come from outside the [Area of Direct Influence] due to the lack

• f

skills locally” (Final EIAR, File 1 pg 603) “Due to the limited numbers of unskilled, semi-skilled and skilled employment opportunities, the proposed mine will offer little or no economic benefit for the local area without skills development”

(Socio-economic study, File 3 pg 1751)

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

67

Socio-economic Impact: Employment (cont.)

Proposed solution:

• Atha

should “prioritise the development

• f

skills within local communities at a planning stage to ensure that local community members have an opportunity to apply for the available positions in the mine” (Socio-economic study File 3, pg 1751) BUT

• Atha’s Social and Labour Plan makes no provision for training of local

communities in planning stage

• At best, Atha may offer 48 learnership opportunities to people from

nearby communities in first 5 years of operation, with no guarantee of subsequent employment

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

68

Socio-economic Impact: Other benefits

Anything else that Atha will provide? Atha will:

• subsidise existing local mobile clinic (at cost of R1 300 000 in total over

5 years)

• build extra classroom for Sinethemba Agricultural and Technical

Secondary School and employ guest teacher (at a cost of R4 420 000 in total over 5 years) [Total revenue from the mine = R1.235 billion/annum for 10 years]

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

69

Socio-economic Impact: Tourism

• Tourism performs significant role – due to historical, archaeological,

scenic and ecological features (Socio-economic study File 3, p. 1741)

• Approximately 400 jobs from eco-tourism (Final EIAR File 1, pg 245)
• Strong future natural-based tourist industry (Final EIAR File 1, pg 242)
• Whereas mine “could result in an increase of tourism and associated job
• pportunities”, if mitigation measures not implemented, mine may

degrade surface and groundwater sources resulting in potential decline in eco-tourism (Final EIAR File 1, pg 245)

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

70

Socio-economic Impact: Agriculture

• Farms used for commercial grazing of livestock and support agricultural

employment opportunities (Final EIAR 1, pgs 83-4)

• Farmers use springs for domestic and livestock watering purposes (Final

EIAR File 1, pg 329)

• Subsistence farmers also live here and use land for grazing (Final EIAR 1,

pgs 83-4)

• 8 homesteads occupied by low-income families with 8 - 30 people in

each homestead with no municipal services

• Vulnerable should current income from farms end or access to

natural resources be prevented (Socio-economic study File 3, pgs 17-8)

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

71

Socio-economic Impact: Conclusion

“It is imperative that, in order to offset any potential economic or livelihood loss within the local socio-economic landscape, local communities will need to be uplifted, up- skilled and employed by the mining operations”

(Final EIAR File 1, pg 610; own emphasis)

But

• only 48 learnerships - after operations have started
• no guarantee of jobs

Fifth ground: Failure to consider Socio-economic Impact of water uses, if authorised, as required by s27(1)(d) of NWA

72

73

Sixth ground: Failure to give effect to right to procedurally fair administrative action

1. Public participation process from 19 June 2015 to 20 August 2015 2. On 26 October 2015 DWS requested further crucial information from Atha 3. On 10 November 2015 Atha submitted additional documents to DWS CER obtained these letters and documents pursuant to PAIA request. They included:

• Atha’s table of mitigation measures (Table 5-7)
• Application by Atha for new water use in terms of section 21(g) of NWA

(disposing of waste in manner which may detrimentally impact on water resource): Use of PCD-process water for dust suppression on roads within 500 metres of wetland systems

• This water use was authorised

(Amplified appeal File 2 pgs 1358 to 1361)

74

Sixth ground: Failure to give effect to right to procedurally fair administrative action (cont.)

• SAS 2015 assessment also did not form part of public participation process
• which is why GCS needed to revise its review
• Lastly, Appellants have still not seen Onno Fortuin Consulting Storm Water

Management Plan Final Design Report (May/August 2015) – dealing with Pollution Control Dam

• contains all details of new PCD arrangement (PCD capacity increased to

approximately 30 742m3 from previous design of 19 000m3)

• one of main water uses authorised

These are material deficiencies in public participation process – on their

• wn these preclude granting of WUL

(Amplified appeal File 2 pgs 1358 to 1361)

75

Seventh ground: Failure to consider strategic importance

• f water use to be authorised (s27(1)(i) NWA)

S27(1)(i) of NWA: “In issuing a … licence a responsible authority must take into account all relevant factors, including … the strategic importance of the water use to be authorised”

• Marginal coal resource being targeted
• smaller coal resource than average
• relatively poor quality
• Mabola Protected Environment: 82% of South Africa’s coal production in

Mpumalanga, and only 6.1% of Mpumalanga included within formal protected areas

• Enkangala Drakensberg Strategic Water Source Area: overlap with

Utrecht coal field, which Atha intends to mine, only 15.5%

(Amplified appeal File 2 pgs 1361 to 1364)

76

Seventh ground: Failure to consider strategic importance

• f water use to be authorised (s27(1)(i) NWA) (cont.)
• Priority should be given to licence applications for coal mines in

Mpumalanga

• with high quality/grade coal
• falling outside of protected areas
• falling outside of strategic water source areas
• Multiple constraints on future production rate of coal in SA
• climate change policy and international obligations in terms of

United Nations Framework Convention on Climate Change and Kyoto Protocol

• These issues did not form part of any specialist report

This comprises further material gap in information

(Amplified appeal File 2 pgs 1361 to 1364)

Relief