By: Victor Munnik

Environmental managers should pay close attention to the recent court judgment instructing ArcelorMittal South Africa to hand over a ten-year-old document to an environmental justice organisation interested in the Steel Valley pollution. The judgment shows that the rules of the pollution game are changing in South Africa.

Among the lessons from the judgment are that:

• the right of communities and activists to monitor, access and use information about corporate activities in the Constitution has been confirmed;
• polluted communities on the fence lines of big, polluting industries can remain tenacious over decades;
• technical information about pollution will come into the light and open to public scrutiny the decisions of environmental managers and their boards; and
• encounters with polluted communities test, in public, the sincerity of corporations’ environmental commitments across public relations, corporate responsibility and legal strategies.

The judgment, in the Gauteng South High Court, that Mittal needs to hand over its master plan to the Vaal Environmental Justice Alliance (Veja), followed on a long history of struggles by polluted communities against the steel factory. The factory started operations in 1952, and the first documented complaints about pollution date from the 1960s. Under apartheid, sporadic challenges from neighbours resulted in out-of-court settlements to buy up smallholdings conditional on the silence of the complainants.

When the new Constitution, after 1994, promised the right to live in an environment not harmful to people’s health and wellbeing, polluted smallholders tackled Iscor through local government, a forum called into being by the Department of Water Affairs (DWA) and two court cases. These engagements did not result in admissions of liability or compensation. However, they did bring detailed documentation about a long pollution history to the nego- tiating table.

In the period 2000 to 2003, Iscor (then in the process of being taken over by what was to become ArcelorMittal), drew up an environmental master plan, spanning a reputed 8 000 pages. It was used in its negotia- tions with the DWA which, to its credit, was ratcheting up pressure for cleaner production. The pressure resulted in a new water treatment plant and other upgrades at Vanderbijlpark. However, the State did not insist on compensation or the expected health fund for residents’ ongoing health problems.

The master plan was never made public. Even in 2003, when access to the master plan was required for public participation in a water use licence process, the master plan could only be read in the Vanderbijl Park public library, but not taken out or copied.

The reason? The master plan described in detail what pollution had emanated from the factory, which, in its court battles, the steel giant denied had ever taken place.
In 2001, Iscor took out a gagging order against 16 complainants in a case against it, to dampen negative publicity. The children of the complainants formed an organisation to speak on their parents’ behalf: the Steel Valley Crisis Committee. This organisation pro- ceeded to involve communities from other polluted areas in the Vaal in a regional alliance (Veja), and networked with national and international organisations – helped along by the World Summit on Sustainable Develop- ment, held in Joahannesburg in 2002, which brought together thousands of international acti- vists – and became part of an international watchdog alliance, Global Action on Arcelor Mittal. It brought together evidence of ArcelorMittal’s environmental justice abuses from across the world. Even though the Steel Valley community had been bought out, physically dispersed and their houses demolished, they remained interested and able to engage the steel giant.

ArcelorMittal argued in court that to give the master plan to community activists would be tantamount to giving them a monitoring role that usurps that of the State. It revealed the bottom line for ArcelorMittal’s managers – that they would like to deny neighbouring communities the right to monitor them, including how they deal with their pollution legacy.

This argument lost in court because the Con- stitution clearly gives communities the right to monitor the environment. The court’s decision signals that the rules of the game are changing as the Constitutional right to a healthy environment works its way into the battles between corporate polluters and the communities resisting them, and communities start to realise their rights in practice. As the public becomes more aware of the impact of pollution and starts to pay for toxic legacies, such as acid mine drainage, this pressure will only increase.

Environmental managers need to take this history into account in all decisions they make. Pollution histories, and the role of professionals in them, will long outlive the pressure of production or budgets at a given moment.

Dr Munnik is a political ecologist and research associate at the Society, Work and Development (Swop) Institute at the University of the Witwatersrand. victor@victormunnik.co.za