Forestry, Fisheries and Environment Minister Barbara Creecy.
Two environmental justice organisations have hauled Forestry, Fisheries and Environment Minister Barbara Creecy and the national air quality officer to court for giving steel producer ArcelorMittal South Africa (Amsa) the go-ahead to continue polluting the Vaal Triangle with excessive amounts of hydrogen sulphide, a toxic pollutant.
On Tuesday, the Vaal Environmental Justice Alliance and groundWork, represented by the Centre for Environmental Rights, announced that they had launched a review application in the high court in Pretoria. Amsa is cited as the third respondent in the matter.
Hydrogen sulphide is a colourless, flammable, hazardous gas with a strong odour of rotten eggs. A known eye and lung irritant, exposure to high concentrations has been reported to cause respiratory, ocular, neurological, cardiovascular, metabolic and reproductive problems and even death.
The legal action by the groups seeks to set aside decisions by Creecy and the national air quality officer to allow Amsa to avoid adhering to minimum emissions standards (MES) for hydrogen sulphide and instead comply with standards that are between three to seven times weaker than the 2015 emission standards.
Weaker limits
According to the law, postponement of compliance against the 2015 standards is prohibited, the applicants said. The Air Quality Act and its regulations allow for operators of older plants, under certain circumstances, to apply for a postponement of compliance with 2020 minimum emissions standards, also known as “new plant standards”, and in parallel seek alternative, weaker limits.
The Vaal Environmental Justice Alliance and groundWork contend that the officials acted unlawfully by allowing for alternative limits that are even weaker than the 2015 “existing plant standards”, which is prohibited.
The applicants argue that the state’s decisions are not only unlawful in terms of the Air Quality Act, but are in contravention of the constitutional right to an environment that is not harmful to health and wellbeing.
“We are continually seeing polluters like Amsa apply for rolling postponements and weaker limits for various pollutants like hydrogen sulphide,” Yegeshni Moodley, the senior campaign manager for climate and energy justice at groundWork, said in a statement.
“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, Moodley said.
Excess hydrogen sulphide
Department spokesperson Peter Mbelengwa said it had noted the legal action and is consulting its legal team.
Tami Didiza, spokesperson for Amsa, said it would oppose the application.
“It is important to point out that the 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 ArcelorMittal South Africa,” Didiza said. “The application will therefore be opposed and ArcelorMittal South Africa will respond to the allegations set out in the application in due course as a part of the legal process.”
The court documents allege that Amsa has been responsible for excess hydrogen sulphide since at least 2003 but has made no progress to rectify the situation in 2010 when it installed abatement equipment.
This equipment functioned for a few months before failing and was still not operational by 2018 when criminal proceedings were instituted against Amsa for the breach. In 2022, Amsa itself reported that the abatement equipment was still not operational.
In 2020, Amsa entered into a plea agreement with the state in which a fine of R3.64 million was imposed on the steelmaker, relating to charges that it exceeded minimum emissions standards for hydrogen sulphide at its coke-making plant at its Vanderbijlpark operations.
In his founding affidavit, Samson Mokoena, the coordinator of the Vaal Environmental Justice Alliance, alleged that Amsa has failed to curb its hydrogen sulphide emissions and to get the coke oven gas cleaning and running and there has been numerous delays in relation to this.
“It appears though that the project is resumed every time there is a threat of criminal or other forms of sanction. The fact is that the project commissioned in 2010 has operated for not longer than a few months and no explanation of the delay in recommissioning since then has been provided.”
Creecy upholding status quo
Amsa’s operations are within the Vaal Triangle Airshed Priority Area, which was the first priority area declared in South Africa because of elevated pollutant concentrations, specifically particulates. Despite this declaration more than 17 years ago, the region’s National Ambient Air Quality Standards (NAAQS) have remained out of compliance and “people are breathing air that is harmful to their health”, Mokoena said in his affidavit.
Hydrogen sulphide is easily converted into sulphur dioxide and in turn, particulate matter and its contribution to the NAAQS “cannot be ignored”. But there is no NAAQS for hydrogen sulphide specifically and only one station that measures the hydrogen sulphide ambient air in the priority area, in Zamdela, a township in Sasolburg.
Creecy, in granting postponements that are weaker than the existing plant standards, “retrogressively” applies the law, allowing Amsa to not comply with limits “it should have in 2015”, Mokoena said. The minister continues to hold the status quo, where “industries are not held to account”.
Long abused
The minimum emission standards “have long been subject to abuse” by numerous industries, including Amsa, he alleged, which is contributing to the NAAQS being out of compliance in priority areas, including the Vaal Triangle Airshed Priority Area.
“According to the National Framework [for Air Quality Management], which forms part of the Air Quality Act, no postponement applications are possible in an area where NAAQS are out of compliance.” He added that the minister is continuing to allow weaker limits instead of bringing industries into compliance.
“This erodes the rights of people living in the area, who are breathing in dangerous levels of pollution as the NAAQS remain non-compliant in the area.”
Mokoena said the decisions by the national air quality officer and the minister weaken the legislative regime that is meant to bring the industries in line to comply with the more stringent standards so that ambient [outdoor air] is then less harmful to the health of people living in the Vaal Triangle Airshed Priority Area.
Didiza said that 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”.
Didiza added that the company is continuously improving on its environmental performance which remains a priority of the business, as is also set out in its Environmental, Social and Governance Report.