From the air at 1200 feet, the pungent rotten egg smell of sulphur hits the small cabin almost as soon as Karl Jensen’s plane turns east over the Bronkhorstspruit Dam towards Mpumalanga.
Sitting in the cockpit of his gleaming Cessna 170, the retired SAA pilot remarks that it’s a stench he knows all too well.
“It’s hydrogen sulphide, most likely from all the power stations, industries and coal mining. In my SAA days, and when I flew for Nationwide, I warned passengers that they were about to descend into a layer of sulphurous air in this area and would get that rotten egg smell.”
After 15 years as a volunteer pilot for the NPO Bateleurs: Flying for the Environment in Africa, Jensen has witnessed the “exponential expansion” of the degradation of the Mpumalanga Highveld from a unique vantage point in recent years.
“It’s only from the air that you can really see the devastation that’s been happening with all these coal mines. The impacts are hidden from the public on purpose.”
It’s a warm, sunny day and the 74-year-old is flying through the thick layer of smog that blankets eMalahleni.
Sulphuric strata, from fossil fuel combustion, run like a yellow cloud across the sky.
Jensen is conducting an aerial survey for the Centre for Environmental Rights (CER), an NPO of activist lawyers who advocate and litigate for environmental justice.
His flight path traverses some of Eskom’s “notoriously polluting” coal-fired power stations and vast networks of huge coal mines and their derelict counterparts.
The main purpose of his fly-over is to see the embattled Optimum Coal’s massive mining complex south of Middelburg: there, rows of unrehabilitated discard dumps seem to stretch for kilometres.
For the CER, the controversy over the Gupta family’s alleged withdrawals from Optimum’s rehabilitation fund to pay back loans - reportedly with the go-ahead of the Department of Mineral Resources (DMR) - highlights the poor regulation of financial provision of mining across the country.
“Optimum has recently gone into business rescue. The mine covers a vast area (32km) and it has had a huge impact on the environment,” says CER attorney Sally Hurt.
“Concerns have been raised over the past two years in relation to the funds set aside by the mine for rehabilitation of the environment.”
All mines are required to set aside such funds before mining starts, she says. “These are supposed to be ring-fenced to adequately cover the costs of rehabilitating the mine in the event of sudden closure or in the ordinary course of events.
“It appears that in the case of Optimum, the funds were not properly ring-fenced, and that there have been attempts by the Guptas to access the funds for purposes which bear no connection to the rehabilitation of the environment.”
This, coupled with the mine’s precarious financial state of business rescue, “means that the environment will ultimately suffer”.
Hurt’s colleague, attorney Tracey Davies, agrees. “The controversy around Optimum’s rehabilitation funds has shone a light on the inadequacy of the DMR enforcement of the laws governing mining rehabilitation in South Africa.
“However, public interest has been sparked by the involvement of the Guptas, not by concern for the environmental impacts.
“There may be a perception
that this particular mine is in
such a mess only because of Gupta-related involvement. But this problem, and the environmental impacts associated with it, is widespread and severe.
“The mess left behind by coal mining operations causes soil and water pollution (acid mine drainage is as much a coal mining problem as it is a gold mining one), and the dust from the waste dumps is one of the sources of air pollution on the Highveld.
“The Guptas may have misappropriated funds that should have been spent on rehabilitation of Optimum. But it’s clear from the photographs that much of the damage, and much of the mess that has been left behind, pre-dates any Gupta involvement. The previous owners of the mine appear to have been as little concerned with rehabilitation as their successors were.”
Unrehabilitated discard dumps from opencast coal mining at Optimum Coal Mine, with Hendrina Power Plant in the distance.
Credit: Daylin Paul for Centre for Environmental Rights
While the CER and its partner organisations fight for mines to be rehabilitated, regulatory gaps mean this rarely happens. “The overlay of corruption has complicated things even further,” says Davies.
The DMR engaged Optimum between October 2016 and February this year to address non-compliances, related to its financial provisions and rehabilitation backlog.
In February, it issued Optimum with a non-compliance notice for failing to abide by its rehabilitation plan. Optimum should have been doing “concurrent rehabilitation” - rehabilitating old pits while digging new ones - but the DMR told Parliament’s committee on mineral resources last month that the mine’s backlog covered about 3400 hectares.
In Mpumalanga, CER research has revealed how concurrent rehabilitation is rarely undertaken.
Optimum has now submitted a reviewed rehabilitation plan, in which it has undertaken to rehabilitate 598ha per year.
“That’s about six years to do the 3400ha,” says Hurt. “It’s not clear what else will be damaged in that time that will also have to be rehabilitated.”
For Davies, there are many mines like Optimum, “which are, in essence, vast wastelands of environmental destruction” in Mpumalanga.
“All available evidence shows that the DMR’s compliance monitoring and enforcement functions
in relation to environmental impacts, including rehabilitation, have not improved.”
The DMR has continued to grant coal mining rights in Mpumalanga - including in sensitive and protected areas - despite objections from affected landowners, civil society and other organs of state.
“It’s pretty clear from the state of Mpumalanga (which, interestingly, is hard to discern from the road) that there is minimal oversight of rehabilitation obligations,” she says.
A 2016 CER report, Zero Hour, showed how the DMR and the Department of Water and Sanitation (DWS) “perpetuate” the legacy of pollution and degradation of derelict and ownerless mines by not securing adequate financial provision for rehabilitating damage to the environment and water resources.
Water use licence conditions are often weak and enforcement by the DWS is negligible. But spokesperson Sputnik Ratau says it is continuously undertaking compliance monitoring and enforcement action against non-compliant water users.
“The department further does thorough assessments of water use authorisations before such authorisations are granted to the applicants.
“The department reiterates that there are no factual bases to allegations that the department is perpetuating pollution and degradation.”
It has acted against Optimum for the contravention of its water use licence. “A directive was issued in February 2014, representation was received on February 28, 2014. A compliance inspection was conducted on December 19, 2014. An audit was conducted on October 24-25, 2016. A follow-up inspection at the mine is scheduled for the first quarter of the 2018/2019 financial year.”
The DMR did not respond to requests for comments, while attempts to reach Optimum and the mine’s business rescue practitioners were unsuccessful.
The centre charges that the DMR fails to assess the adequacy of financial provision proposed by mining companies, or to enforce the prescribed annual reassessment.
“Calculations are seldom adjusted for inflation over time.
“Provision is almost always insufficient by the time funds are needed for rehabilitation and closure; companies often declare bankruptcy, de-register, or sell once the profitable extraction years come to an end, but what are the implications in relation to provision when this happens?”
This is “aggravating the legacy of derelict and ownerless mines, and the devastating impacts on the health, safety and well-being of communities.
“Water, air quality, soil and food security, biodiversity and ultimately rehabilitation become the burden of the taxpayer,” it maintains.
Now, it says, new draft regulations proposed by the Department of Environmental Affairs seek to “relax” regulations for mines to provide sufficient financial provision for restoration.
The 2015 financial provisioning regulations required that companies must allocate financial provisions that would cover 10 years of rehabilitation after mining has stopped, while the new draft regulations propose this be cut back to three years.
This is inconceivable to the CER’s executive director, Melissa Fourie and organisations such as Conservation SA and the Federation for a Sustainable Environment opposed to the draft regulations.
“It’s completely arbitrary. The problem is that a lot of the impacts we’re dealing with manifest after hundreds of years,” says Fourie.
“When a mine goes into business rescue, it’s usually an inevitable gateway to liquidation, then to abandonment, and we have 6000 of those abandoned mines in the country.
“The reality is that the state never does enough to actually rehabilitate - it’s the environment and the people who rely on it who bear
that expense. This puts the state and the environment at massive risk.”.