Eco-justice groups on Tuesday, 15 August announced they were suing the minister of forestry, fisheries and the environment, Barbara Creecy, and the National Air Quality Officer (NAQO) for permitting almost two decades of air pollution by the continent’s largest steel supplier, ArcelorMittal South Africa (Amsa).

Represented by the Centre for Environmental Rights, the Vaal Environmental Justice Alliance and groundWork have raised a constitutional issue with decisions made by Creecy and the NAQO that allow Amsa to continue polluting the Vaal Triangle and surrounding areas. 

The court application states that Amsa falls within the Vaal Triangle Airshed Priority Area, which has not been compliant with the National Ambient Air Quality Standards for 17 years and shows no signs of improvement. 

The groups state that lenient action over pollutants at Amsa’s Vanderbijlpark steelworks in Gauteng is not only unlawful in terms of the Air Quality Act, but is also a contravention of the constitutional right to an environment that is not harmful to health and wellbeing. 

The groups approached the Pretoria High Court in the hope of setting aside decisions that have permitted Amsa to avoid adhering to legislation limits, or minimum emission standards. 

The court will be reviewing the NAQO decision from March 2020 to allow Amsa a postponement to comply with timeframes for Minimum Emission Standards and alternative emission limits for various pollutants, including excessive amounts of hydrogen sulfide at Vanderbijlpark.

In an email announcing the legal action, the groups stated that Creecy and the NAQO had permitted Amsa to comply with standards that are three to seven times weaker than the 2015 emission standards, which are health-based standards that protect people living near polluting industries.

The second decision they seek to have set aside is by the Department of Forestry, Fisheries and the Environment (DFFE) in February 2023 dismissing their internal appeal against the Minimum Emission Standards decision. 

The groups say this has adversely affected residents in the Vaal Triangle Airshed Priority Area’s constitutional rights to an environment that is not harmful to their health or wellbeing, and to have an environment protected for the benefit of present and future generations, and other interrelated rights. 

The court papers state: “According to the National Framework, no postponement applications are possible in an area where [National Ambient Air Quality Standards] are out of compliance. The Department has previously acknowledged that ending postponements is necessary, and the fact that one of the primary factors hindering this aim is industries having no meaningful consequence for non-compliance.”

However, instead of bringing industries into compliance, the applicants allege that the minister continues to allow for weaker limits, which erodes the rights of people living in the area, who are breathing in dangerous levels of pollution. 

DFFE spokesperson Peter Mbelengwa said the department had noted the legal action and was consulting with its legal team.

Amsa spokesperson Tami Didiza said it was important to note that this court application relates to a matter decided by the minister “within the framework of the legislation, after due process and a duly motivated application by Amsa”.

Didiza said the application would therefore be opposed.

‘Not permissible in law’

Yegeshni Moodley, climate and energy justice senior campaign manager at groundWork, said: “We are continually seeing polluters like Amsa apply for rolling postponements and weaker limits for various pollutants like H2S [hydrogen sulphide].

“This effectively amounts to an exemption from minimum emissions standards, which is not permissible in law. This state of affairs is being endorsed by the state, which has a duty to protect the environment and people from health and other harms.”

This case comes as Marcos Orellana, the UN Special Rapporteur on toxics and human rights, visited South Africa and this week said: “Where powerful actors are allowed to act with impunity and disregard environmental protections, the confidence in democracy and the environmental rule of law begin to erode.”

Orellana urged the government to uphold the Constitution, particularly its mandate to ensure the right of everyone to an environment that is not harmful to their health or wellbeing. 

He called on the government to abandon the ongoing “environmental racism” that continues to negatively affect people and the environment in vulnerable regions.

“South Africa’s strong legislative framework should serve as the backbone for accountability and access to effective remedies… Yet where powerful actors are allowed to act with impunity and disregard environmental protections, the confidence in democracy and the environmental rule of law begin to erode.”

What the community has to say to Amsa

Vaal Environmental Justice Alliance representative Samson Mokoena said they continue to breathe polluted air with very little recourse for the protection of their constitutional rights, despite the declaration of the Vaal Triangle Airshed Priority Area in 2008 because of concerns over elevated pollutant concentrations in the area.

“After all these years, the Vaal Triangle is still being treated like a sacrifice zone, where those unfortunate enough to have to live there are subjected to pollution which kills, injures and destroys lives.” 

Beauty Jantjie from the Zamdela Air Quality Monitoring Committee in Sasolburg, pleaded for Amsa to reduce its emission standards. “They should consider us as [a] community and not put profit before people. We don’t want to get ill.”

Amsa’s Didiza said, “As a responsible corporate citizen, ArcelorMittal South Africa is mindful of the importance of conducting our business in a responsible and ethical manner — and this includes respecting the rights and interests of our stakeholders — and in compliance with the law.”

Amsa’s Vanderbilpark plant manufactures steel products by charging raw materials such as iron ore, coke and dolomite into blast furnaces to produce liquid iron. The liquid iron is refined in basic oxygen furnaces to produce liquid steel. The liquid steel is further processed into various rolled and coated steel products.

ArcelorMittal operates five coke batteries to produce metallurgical coke —  an important input material in the iron-making process. During the coke-making process, gas and other by-products are formed. 

Amsa began its Coke Oven Clean Gas and Water project in the early 2000s to install new technology that would enable it to clean the coke oven gas for reuse in the works as fuel gas and also to comply with Environmental Best Practice Standards internationally. However, the project has faced numerous delays and challenges.

According to the court papers, the major concern is that the plant is not fully operational and Amsa is not removing sulphur from the coke oven gas, which leads to the release of emissions (particularly sulphur dioxide) from the facility to the environment. DM