The blood lead levels (BLLs) in children living near the world’s biggest lead mine in Zambia have been present for generations and have caused cognitive impairment in a large proportion of the population.
People’s blood lead levels in the district of Kabwe are higher than the blood lead levels that have recently led to a $641-million settlement for residents of Flint, Michigan, in the US, a case that is “perhaps the most well-known modern example of mass lead poisoning”.
This is set out in the latest filing of evidence by Mbuyisa Moleele, a Johannesburg-based law firm, and Leigh Day, an international law firm specialising in human rights and mass environmental tort claims, in their class action lawsuit against Anglo American South Africa, which is accused of causing multi-generational lead poisoning of children and women in the Kabwe district.
They are representing 13 claimants on behalf of 100 000 women and children contaminated by the mine in Kabwe, who filed the class action lawsuit against Anglo American in October 2020.
The claimants are seeking permission from the high court in Johannesburg to proceed with a class action in South Africa, for compensation for children and girls and women with lead poisoning who have or may become pregnant in the future.
Children, pregnant women and the unborn child are especially vulnerable to the effects of lead.
They are also seeking blood lead screening for children and pregnant women in Kabwe and the clean-up and remediation of the area “to ensure the health of future generations of children and pregnant women is not jeopardised”.
Anglo American has opposed the class action. A hearing to decide the issue will be held later this year.
Anglo has consistently denied responsibility, said Zanele Mbuyisa, a partner at Mbuyisa Moleele.
“With this filing, we submit further strong evidence to demonstrate the inextricable link between Anglo’s operations and the ongoing contamination in Kabwe, supported by world-class expert witnesses and a wealth of evidence. This is in stark contrast to Anglo’s untenable lines of argument, which attempt to pin the blame on anyone but themselves.”
The claimants’ experts conclude that the present lead contamination of the soil, dust and blood of residents emanated mainly from the Kabwe lead smelter and waste dumps before 1974, and the pattern of lead contamination in Kabwe “is not consistent with natural or other sources of lead being significant causes of the contamination”.
Anglo’s attempt to blame its successor, Zambia Consolidated Copper Mines (ZCCM), for the present lead contamination does not stack up, she said.
“It is contradictory for Anglo to argue that elevated soil and blood lead levels are not due to the mine and to accuse ZCCM of ‘recklessness and neglect’ over its handling of the mining operations and failure to clean up — especially when the deficiencies alleged against ZCCM by Anglo essentially also existed when Anglo was in control, and Anglo also opted not to clean up.”
Mbuyisa told the Mail & Guardian: “With the high BLLs that the children of Kabwe have, if it were white kids going through this, this would not have happened as long as it has. Kabwe is not a rich area. And then you have women, who first of all potentially have to go through a difficult pregnancy because of all the lead in their blood, and then their children potentially being born with developmental and neurological issues. To deal with all of that costs money.”
‘We have every sympathy’
Anglo American South Africa spokesperson Sibusiso Tshabalala said the company was “concerned about the contamination at Kabwe and any suffering that comes from it”.
“Contamination is not acceptable anywhere. We have every sympathy for the people of Kabwe and their plight, but we do intend to defend ourselves because we do not believe that we are responsible for the current situation.”
The Zambia Broken Hill Development Company (ZBHDC) was the mine operator, he said, which means matters relating to the operation of the mine, including employee health, would have been its responsibility. “Anglo American provided certain services to the mine, but at no stage owned or operated the mine. It suits Leigh Day to conflate ZBHDC with Anglo American, but it is incorrect.”
The mine was nationalised in the early 1970s and was operated by a number of Zambian entities for 20 years until 1994, when the mine was closed. “The claim fails to take into account this period and the role of a number of parties in the post-closure management of the mine site during the 27 years since 1994,” Tshabalala said.
In her replying affidavit, Mbuyisa detailed how the uncontested evidence shows that the Kabwe environment was already heavily lead-polluted in the late 1960s and early 1970s, with resulting levels of lead poisoning comparable to present-day levels and that this contamination “occurred under Anglo’s watch”.
The approach to settlement taken in the Flint lead poisoning case “provides a stark comparator to the situation in Kabwe and Anglo’s refusal to acknowledge actionable harm except in the most extreme cases”.
The case of Flint
In 2014, in Flint, Michigan, the city turned to the Flint River as a water source while constructing a new pipeline, resulting in dangerous levels of lead and other contaminants in the drinking water.
The following year, local paediatrician Dr Mona Hanna-Attisha noticed there was an increase in the number of children with elevated blood lead levels and raised the alarm.
“It was later shown that the mean [blood lead levels] during the Flint water switch had increased from 1.19 to 1.30pg/dL [picogram per decilitre].
“It bears repeating that the mean [blood lead levels] in Kabwe are almost 10 times that amount,” Mbuyisa stated in her affidavit.
In the judicially approved settlement of the Flint children’s claims, the highest category of award is reserved for children aged six and younger at first exposure with blood lead levels at or above 10.0 mcq per decilitre.
“By comparison,” Mbuyisa argued, “the average blood lead levels in many parts of the Kabwe district far exceed 10 pg/dL … It is implicit from the Flint settlement that individuals with [blood lead levels] less than 10 pg/dL can prove cognitive impairment from lead.
“… Anglo denies the scientific consensus that there is no safe level of lead in the blood. It denies that lead exposure causes a range of injuries and conditions. It even goes as far as to deny that any of the applicants have suffered harm, despite the fact that all but four have [blood lead levels] over 50 pg/dL and two exceed 100 pg/dl.”
To place Anglo’s “extreme position” in the proper perspective, “it would mean that almost none of the child victims of lead poisoning in Flint, Michigan, would have had a claim”.
In an expert affidavit, Professor Bruce Lanphear, of Canada’s Simon Fraser University, said the “extraordinarily high and sustained blood lead concentrations” experienced by the plaintiffs has had a detrimental effect on their overall health, particularly in poorer birth outcomes, diminished cognitive abilities, and behavioural problems.
“The blood lead concentrations observed in Kabwe are closest to those in the Cincinnati lead study and considerably higher than the children in Flint, Michigan,” he said.
In her affidavit, Mbuyisa described how Anglo’s 50-year involvement in the mine corresponded with over 66% of lead production during its lifetime.
“By contrast, the period from 1974 to 1994 accounted for little over 22% of lead production. Only 7% was produced during 1985 to 1994, which Anglo alleges was the worst period of ZCCM’s negligence,” she said.
Tshabalala said one aspect of the allegations being made is particularly misleading, “namely the assertion that there is a linear correlation between volumes of lead produced over time and contamination. We believe this assertion is fundamentally flawed, because of the implementation over time of improving technologies to reduce emissions (an issue that certain of the claimants’ own experts acknowledge), and the apparent subsequent failure to maintain the efficacy of some of those technologies post-nationalisation.”
To that point, he said, ZCCM’s records show there was a significant deterioration of operating standards under its ownership post-1974, “with the collapse and eventual removal of the critical air pollution control devices” — and that the period post 1989, “most likely represents the worst period of lead pollution, in the history of the Kabwe mine”.
“Leigh Day is seeking to hold only Anglo American liable for a mine that it itself acknowledges we didn’t own or operate, but it misrepresents the facts and ignores those who did own and operate the mine over time,” he said.
Richard Meeran, a partner at Leigh Day, said Anglo has been aware for decades of the scale and severity of lead poisoning to the children of Kabwe and “yet it has done nothing to alleviate their suffering”.