Vaal Environmental Justice Alliance
Centre for Environmental Rights
groundWork (Friends of the Earth South Africa)

ARCELORMITTAL’S ENVIRONMENTAL MASTER PLAN MADE PUBLIC BY VAAL COMMUNITIES

Media briefing
Venue: Rosa Luxemburg Foundation, 237 Jan Smuts Ave, Parktown North
Date: Monday, 22 June at 11.00
Copies of the Master Plan will be available

Johannesburg, South Africa, 19 June 2015 – In November 2014, the Supreme Court of Appeal handed down judgement in the case of steelmaker ArcelorMittal South Africa (AMSA) against community organisation the Vaal Environmental Justice Alliance (VEJA), ordering AMSA to hand over the 2003 Environmental Master Plan for its Vanderbijlpark steel plant. The Master Plan, sought by VEJA for more than a decade, was eventually handed over by AMSA on 17 December 2014.

On 22 June 2015, VEJA is making the AMSA Master Plan available to the public.

The infamous Master Plan is a series of specialist environmental reports incorporating results of tests of pollution levels and environmental and human health risk assessments conducted at AMSA’s Vanberbijlpark site between 2000 and 2002. The Vaal communities have struggled for a long time to access this Master Plan in order to obtain further information on the extent of the pollution caused by AMSA (previously Iscor) and what the company undertook to do to address this pollution.

Bordering the Vanderbijlpark steel plant owned by AMSA and where waste materials were stored in a slagheap and unlined dams, Steel Valley has a legacy of extensive steel production and accompanying water, soil and air pollution.[1] The Vanderbijlpark plant has long been the focus of the environmental justice struggles of communities in Steel Valley.

VEJA is in the process of securing advice from international scientific experts and local legal experts on possible claims and remedies that arise as a result of AMSA’s pollution.
The Master Plan is also being made available to the landowners and residents affected by the Vanderbijlpark plant.

The Steel Valley Crisis Committee and other non-government organisations such as groundWork, the South African Water Caucus and the Right2Know Campaign have pledged their support to the Steel Valley communities in taking this matter forward and holding AMSA to account.

Samson Mokoena, coordinator of VEJA, who has seen this struggle through from the start, states: “This is a small, but positive step in a long struggle for justice for the residents of Steel Valley and for the rights of all South Africans to an open and transparent society and an environment not harmful to their health or well-being.”

In addition to DVDs that will be handed out at the media briefing on 22 June 2015, the Master Plan is also being archived in various places, including the online archive of the South African History Archive (www.saha.org.za), and the Northwest University, Vaal Campus.[2] 

Annexure A summarises the content and findings of the Master Plan. Annexure B summarises the legal proceedings that were required to secure disclosure of the Master Plan. Annexure C sets out the principal findings of compliance inspections undertaken at AMSA’s Vanderbijlpark plant by the Environmental Management Inspectorate in November 2008 and August 2010, as contained in the Department of Environmental Affairs National Environmental Compliance and Enforcement Report 2012/13 (NECER).

VEJA is a non-profit organisation made up of non-governmental and community-based organisations. It advocates for a healthy environment and sustainable development in “the Vaal Triangle”. This is an area of heavy industry and mining in the south of Gauteng, in which two of ArcelorMittal’s major steel-plants are situated, namely its Vanderbijlpark and Vereeniging plants.

The Centre for Environmental Rights is a non-profit company and law clinic based in Cape Town.  Its mission is to advance the realisation of environmental rights as guaranteed in the South African Constitution by providing support and legal representation to civil society organisations and communities who wish to protect their environmental rights, and by engaging in legal research, advocacy and litigation to achieve strategic change. www.cer.org.za.

groundWork is a non-profit environmental justice service and developmental organisation working primarily in South Africa but increasingly in Southern Africa. groundWork seeks to improve the quality of life of vulnerable people in South Africa, and increasingly in Southern Africa, through assisting civil society to have a greater impact on environmental governance. groundWork places particular emphasis on assisting vulnerable and previously disadvantaged people who are most affected by environmental injustices.  Further information on the organisation can be accessed at www.groundwork.org.za

The South African Water Caucus is a network of about 20 organisations, active in the water sector, which, inter alia, advocates for access to clean water and engages with the Department of Water and Sanitation in the making of policy and implementation of processes concerning South Africa’s water resources.    Further information can be accessed at http://www.emg.org.za/programmes/climate-change/35-uncategorised/43-sa-water-caucus

The Steel Valley Crisis Committee is a community-based organisation established to mobilise the community, engage the steel manufacturers in the area and to spearhead the previous litigation against AMSA (then Iscor).  For further information, contact Samson Mokoena at 084 291 8510.

The Right2Know Campaign is a coalition of organisations and people, initially established in response to the proposed Protection of State Information Bill (the Secrecy Bill), which is involved in mobilisation and advocacy against secrecy in law and practice; supporting communities and groups to access information that is critical to broader struggles for social justice; to promote a free and diverse media sector; and to link whistleblowers to appropriate partner organisations for legal support and advocacy.  For further information, visit http://www.r2k.org.za/

CONTACTS

Annexure A: Contents and findings of the Master Plan
The Master Plan, as handed over by AMSA to VEJA on 17 December 2014, is made up of detailed reports commissioned by AMSA on, among other things: groundwater pollution; surface water pollution; air pollution; geology; soil; risks for environmental harm and human health; and terrestrial and aquatic ecosystem impacts - all in relation to the Vanderbijlpark plant.

The Integrated Report of January 2003, makes clear that, at the time that the Master Plan was prepared, there was already substantial pollution at the Vanderbijlpark plant.  The Integrated Report notes that:

“Ground water chemistry results obtained from boreholes in the great [Consolidated Residue Management Facility] CRMF area, confirm elevated concentrations of Ca, Mg, SO4, Cl, K, Na, NO3, F, Fe and Mn within both the perched and shallow weathered zone aquifers…”

“With regard to the more potent micro-contaminants, mobility of the impacted … soils indicated a potential unacceptable risk (pathway being groundwater) of manganese to the environment, and a potential unacceptable risk of aluminium and iron to human health”.

“For both the aquifer zones, the risk to human health and the environment generally relates to elevated inorganic concentrations for Ca, Mg, SO4, Cl, Na, K, NO3 , F, Fe and Mn”.[3]

Initial findings by expert and scientist of Environmental Law Alliance Worldwide (ELAW) in the USA, Dr Mark Chernaik,[4] question the fact that, given that groundwater samples taken as part of the Master Plan reports, showed detectable levels of cadmium, “cadmium toxicity should have been, but was not, a main focus of the investigation of groundwater contamination in the vicinity of AMSA”. Chronic exposures to very low levels of cadmium can cause renal dysfunction, including kidney failure.[5] Residents of Steel Valley have long alleged significant health and other impacts from water pollution in the area.

The Master Plan was released with a summary report by AMSA compiled in 2014 “to place the so-called Vanderbijlpark ‘Master Plans’ and the progress made in terms of Environmental Management at this facility into perspective”. This summary essentially records measures taken by AMSA since the Master Plan was compiled.
Without providing more detailed commentary at this stage, in many instances it seems that “institutional measures” were preferred by AMSA over “technical measures” as means to remediate pollution, due to the “technical Impracticability” to remediate certain areas in the plant “to levels that will represent acceptable risk to human health and the environment”.[6]

 

Annexure B: Legal proceedings to access the Master Plan
In 2011, VEJA, through its attorneys, the Centre for Environmental Rights (CER), submitted a request in terms of the Promotion of Access to Information Act (PAIA) for AMSA’s Master Plan.[7]  AMSA refused to make its Master Plan available – claiming that VEJA had not demonstrated its right to access the Master Plan - and the matter was taken to the South Gauteng High Court, where the court found in favour of VEJA, ordering AMSA to release the Master Plan to VEJA, and to pay its legal costs.  Persistent in its refusal to make the Master Plan available, AMSA then took the matter on appeal to the Supreme Court of Appeal in Bloemfontein. 

AMSA’s main argument was that the Master Plan was not required for the exercise or protection of VEJA’s constitutional rights. AMSA also argued that the Plan was outdated and irrelevant – compiled for the purposes of litigation that AMSA was involved in - and that the findings were found to be scientifically and technically flawed.  A further basis for AMSA’s contestation was the contention that VEJA was attempting to usurp the state’s function in seeking to directly enforce regulatory provisions of environmental legislation.

VEJA, in its submissions to the court, stated that, if AMSA were correct that there were flaws in the Master Plan, it was not the data that were flawed, but rather the conclusions drawn from the data. In any event, VEJA pointed out that the information in the Master Plan would provide valuable baseline data.  It noted in its court papers that the Master Plan has been a crucial framing document in [AMSA]’s approach to tackling pollution in and around its Vanderbijlpark plant.
In its ruling in November 2014, the SCA held that:

“I agree with the submissions on behalf of VEJA that [AMSA]’s acknowledged history of operational impact on the environment is important.  This is not an aspect touched on by the high court. [AMSA]’s industrial activities, impacting as they do on the environment, including on air quality and water resources, has an effect on persons and the communities in the immediate vicinity and is ultimately of importance to the country as a whole.  Translated, this means that the public is affected and that [AMSA]’s activities and the effects thereof are matters of public importance and interest.  Put differently, the nature and effect of [AMSA]’s activities are crucially important.  [AMSA] is a major, if not the major, polluter in the areas in which it conducts operations.”[8]
“It is clear, therefore, in accordance with international trends, and constitutional values and norms, that our legislature has recognised, in the field of environmental protection, inter alia the importance of consultation and interaction with the public.  After all, environmental degradation affects us all.  One might rightly speak of collaborative governance in relation to the environment.”[9]
“Corporations operating within our borders… must be left in no doubt that, in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced”[10]
The Court acknowledged that the disclosure of the information in the Master Plan “will enable either a verification of [AMSA]’s stance or might cause us to have even greater concerns about environmental degradation.  That it will be a valuable controlling tool can afford of no doubt”.[11]
At the time, Samson Mokoena, co-ordinator for VEJA stated that: “This has been a long struggle. This judgement confirms what we have known all along – that we have a Constitutional right to know what AMSA’s impacts are on our health and the environment.  Polluting companies like AMSA can no longer to try to hide this kind of information.”

For further background information on this see the following articles:http://www.dailymaverick.co.za/article/2014-12-04-groundup-vaal-environmental-justice-alliance-claims-court-victory/#.VXrS_vmqqko  and http://cer.org.za/news/victory-for-the-vaal-communities-as-the-supreme-court-of-appeal-orders-arcelormittal-to-release-environmental-records

 

Annexure C: Principal findings in NECER 2012/13[12]



[1] Steel Valley falls within the first area to be declared a Priority Area for air pollution under the National Environmental Management: Air Quality Act, 2004 – known as the Vaal Triangle Airshed Priority Area.

[2] Should you wish to obtain access to the Master Plan documents, contact nloser@cer.org.za or rhugo@cer.org.za.

[3] Pages 33 and 36 of the Integrated Report.

[4] https://www.elaw.org/about/staff.

[5] Groundwater reports volumes 1 to 7, in particular see volume 5 of 7 at pages 188-190.

[6] Page 37 of the Integrated Report. Institutional and technical measures are described in paragraph 4.7 of page 12 of the Integrated Report

[7] AMSA’s annual reports made reference to the Master Plan as being the driver behind the corporation’s environmental strategy.

[8] Paragraph 52 of the SCA Judgment.

[9] Paragraph 71 of the SCA Judgment.

[10] Paragraph 82.

[11] Paragraph 81.