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A Flaw in the Plan

We sat down on the floor and drank over-sweet tea in the dying light. As he spoke, a memory stirred in me, a sense of deja vu. I couldn’t imagine why. I knew I hadn’t met him before. Then I realised what it was. I didn’t recognise him, but I remembered his story. I’d seen him in an old documentary film, shot more than ten years ago, in the valley. He was frailer now, his beard softened with age. But his story hadn’t aged. It was still young and full of passion. It broke my heart, the patience with which he told it. — Arundhati Roy, “The Greater Common Good,” about a large dam project in India.

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Section 24 of the South African Constitution enshrines the right of all citizens to enjoy a healthy environment, and is unequivocal in calling for its protection. It ends with a clause advocating for the need to “secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”   

This last clause haunts me. It anticipates the inevitable tension between environmentally-sound policies and our unquenchable thirst for societal development. 

Johan Dewing understands this tension. He’s stocky, built like someone who’s spent an entire career laboring on a farm or a factory. His salt-and-pepper-hair is slightly receded and combed over to one side, exposing a thinly furrowed brow, and he sports a trim mustache. His small farm is in a grassy expanse called Steel Valley, in Vanderbijlpark (Fan-der-biel-park), southwest of Johannesburg. Vanderbijlpark, along with the cities of Vereeniging and Sasolburg, anchor the Vaal Triangle — an industrial hotspot that historically buoyed the apartheid-era economy. Even today the Triangle remains a major industrial center for steel and petroleum-derived goods

Johan Dewing on his property in Steel Valley
Johan Dewing on his property in Steel Valley

Vanderbijlpark itself is steel country, and Dewing’s property is in the shadow of ArcelorMittal South Africa’s (AMSA) steel plant. It’s one of world’s largest inland steel plants, producing 60 percent of South Africa’s steel and exporting the rest of its production around the world. AMSA is one of the Triangle’s largest employers, and at its peak it employed over 10,000 people. 

A road framed by barbed wire fencing and tall stacks billowing puffy white smoke divides Steel Valley from the western edge of AMSA’s plant. Dewing’s property is right off the road, directly across from what was once a towering waste heap, which now resembles a grassy plateau.  The valley today looks mostly empty, but it used to be a thriving community of nearly 600 small landholders. Only a few residents dot those properties now, including Dewing.  I visited him with Mdudzi Tshabalala, a coordinator with the Vaal Environmental Justice Alliance (VEJA), an NGO which brings attention to environmental issues in the Triangle.

Steel Valley residents have complained for decades about fetid groundwater and the health consequences it caused them — including headaches, vomiting, fatigue, cancers, kidney and heart problems. One resident said the groundwater started boiling when he put it in the fridge. Dewing takes us to a now defunct borehole, which is like a well, near his property, and it reeks of tar. He once drank this water but no longer does, because AMSA agreed to pipe clean water to his property.

Dewing bought his land in the early 90s and soon after began suffering from medical problems.

“My children were urinating blood, my wife was urinating blood. I was working as a superintendent [at the time] and I was having dizzy spells. I couldn’t count. I used to count all the gas returns, and you must be wide awake to do your work.

“If you got home and wanted to take a bath, your bathwater was smelling like a tar, petroleum smell. And we had skin rashes. My kidney was starting to fail.

You felt so tired. 7 o’clock in the mornings, I couldn’t remember what I was doing 5 minutes ago. I was so tired, I couldn’t cope.”

A road divides the western perimeter of AMSA's plant, on the left, from Steel Valley, on the right.
A road divides the western perimeter of AMSA’s plant, on the left, from Steel Valley, on the right.

In addition to medical problems, farmers in Steel Valley reported low crop yields and sickly animals. Samson Mokoena spent nearly a decade living with his family in Steel Valley, but eventually groundwater pollution ruined their crops and affected livestock, which had difficulty breeding. AMSA eventually bought out their land in 2004, forcing the the family to move, though Mokoena remains an active voice in opposing AMSA’s policies. He’s currently a coordinator with VEJA.

Dewing shows us his animals, which are roaming around his yard. He says very few of them are able to reproduce, and some are born deformed. Most of the chicks on his farm die, and his wife cares for the ones that make it. “She’s battling to keep this one alive,” he whispers, cradling a tiny chick in his palm even though it’s three months old. We watch a goose dawdle far behind his flock.  

An undersized chick is just one of the animals facing health consequences as a result of nearby pollution
An undersized chick is just one of the animals facing health consequences as a result of nearby pollution.

Whittling Down A Community

Litigation in the late 90s forced AMSA to buy out some Steel Valley properties, but without admitting liability. By 2000, AMSA had bought out most of the remaining small properties and cordoned off large swaths of Steel Valley with electric fencing.

In 2001,16 remaining residents field multiple interdicts (like injunctions) to force AMSA to stop polluting. The entire case was dismissed in 2003, burdening landholders with years of legal fees. AMSA further consolidated its grip on Steel Valley by buying out most of the remaining landholdings.

But not all of them. Dewing refused the payment for his land, claiming he was offered only 50,000 rand for his house and property (approximately $9,506 when accounting for inflation and historical exchange rates).  

“Who wants money when their family is seriously ill? I was ill but not that stupid,” he says.

In 2000, as a result of all this litigation, AMSA commissioned an exhaustive Master Plan for the Vanderbijlpark plant, which would provide recommendations to mitigate pollution for the next 20 years, and quantify the damage AMSA had already done to Steel Valley. The plan is a paradox. While AMSA was publicly denying Steel Valley pollution, here it was commissioning an exhaustive report to directly measure the extent of this “non-existent” pollution.

The Plan’s conclusions were damning.

Groundwater contamination posed an “unacceptable risk to the environment” within the plant boundaries and a “potentially unacceptable risk” beyond the perimeter. All streams nearby, which feed into the Vaal River, were impacted. Risks to human health and the environment were likewise unacceptable beyond the western perimeter of the plant. The level of contamination in aquifers was so significant that no short or medium term solutions could improve contamination. AMSA would have to flush aquifers with clean water for decades to dilute contaminant levels.   

AMSA looms in the distance, beyond Steel Valley
AMSA looms in the distance, beyond Steel Valley

Battle Lines

The public did not know any of this in 2003, when the plan was finished. AMSA had little incentive to release all 7000 pages of the plan, which would reveal it had been a major polluter all along. Greater Steel Valley residents received only a vague summary report. The plan, though publicly unreleased, remained a strategically important, seminal document for AMSA.

Affected residents and VEJA needed the Master Plan to understand the extent of degradation to their property, and how far the pollution spread beyond the walls of the plant. Without it, they were shooting in the dark, unable to pin substantive, data-driven evidence of liability on the company. Without baseline measurements, VEJA couldn’t asses what had improved…or what had gotten worse.  

Meanwhile, in 2007, a government inspection of AMSA’s nearby Vaal disposal site found multiple violations, like “significant and serious pollution of surface and groundwater with phenols, iron, oil, fluoride and other hazardous substances.” AMSA was ordered to stop polluting the site, and it eventually complied. Other government inspections in 2008 and 2010 found that AMSA’s Vanderbijlpark site continued to operate without proper permits, violating water laws.  

In October 2009, eight environmental organizations formed the Center for Environmental Rights (CER) as a legal clinic to advance environmental rights. In December 2011, with legal support from CER, VEJA submitted a Promotion of Access to Information Act (PAIA) request to get the Master Plan. PAIA is like a Freedom of Information Act request in the US — it’s a tool to acquire information from both public and private entities to protect constitutional rights. PAIA, and the constitutional clause enabling it, were an attempt to undo a culture of secrecy that pervaded the pre-1994 apartheid government.

As expected, AMSA rejected the request. AMSA attorneys wrote that the Master Plan was now obsolete because it was completed a decade before the PAIA request. AMSA went further, noting that the conclusions in the plan were wrong. It claimed consultants used worst case scenarios, which artificially amplified the potential risks posed by the plant. They also contended VEJA did not have real standing to request the documents — government agencies were responsible for enforcing environmental compliance, so what was VEJA going to do? Finally, attorneys said VEJA did not clearly show it had a right to protect by obtaining the plan — relying on Section 24 of the Constitution was too vague.  

These arguments proved futile, and all were summarily rejected in 2012 by the High Court in Johannesburg and in 2014 by the Supreme Court of Appeal. Both courts noted that even if the conclusions in the Master Plan were flawed, the underlying data could still be used as a baseline for pollution levels. Both courts cited prior Constitutional Court rulings about the importance of civil society working to expand human rights:

“…The protection of environmental rights will not only depend on the diligence of public officials, but also on the existence of a lively civil society willing to litigate in the public interest.”

AMSA might have taken steps to improve its pollution discharge, but the Supreme Court of Appeal noted it was not helping its case (or public image) by dodging information requests.

In November 2014, the Supreme Court of Appeal ordered AMSA to release their Master Plan and pay for VEJA’s legal fees.

Johan holds up piping from an abandoned borehole, which reeks of tar.
Johan holds up piping from an abandoned borehole, which reeks of tar.

The Wait

And now, the waiting begins. Or continues really, if you count all the time that has elapsed since residents first drank toxic water.

VEJA is currently assessing pollution levels in the Steel Valley area, and comparing the results to baselines in the Master Plan. Eventually, they hope to pin liability on AMSA.

I’ve heard echoes of this story before, as you probably have too. In 2014, Duke Energy’s coal ash storage pond ruptured in North Carolina, polluting the Dan River’s water supply with millions of gallons of sludge waste. For years, the Dupont chemical company dumped toxic waste into a creek in Parkersburg, West Virginia, poisoning livestock, people and the town’s drinking supply. Stories like these happen everywhere, and a familiar pattern emerges. Some stories will get press coverage, some reforms might occur, some damages might be paid, repeat ad nauseam. But there’s always a wait and a ticking clock. There’s a wait for cases to wind through courts, and blood to filter through test tubes, and buyout checks to be signed, dated and mailed. 

Johan Dewing knows this wait. He and his family first reported serious symptoms nearly two decades ago, and he continues to hold out hope that some of his medical expenses will be defrayed.

“I never received anything from Mittal yet. They polluted my ground, they polluted my family, they’re still polluting us, evening after evening.”

Johan trails a flock of geese on his property
Johan trails a flock of geese on his property