Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Greater Middelburg Residents’ Association secretary Thomas Mnguni and coordinator Kensani Shilubane outside the Middelburg Ferrochrome plant

In another victory in the fight against corporate secrecy around environmental impacts, the Minister of Environmental Affairs has rejected an appeal by Samancor Chrome against the Department of Environmental Affairs’ decision to disclose key environmental compliance records in relation to Samancor’s Middelburg Ferrochrome plant.

The Department of Environmental Affairs (DEA) had decided to release these documents under the Promotion of Access to Information Act (PAIA), pursuant to a request to do so from local community organisation the Greater Middelburg Residents’ Association (GMRA). The records include external legal compliance reports which Samancor compiled in terms of its waste management licence obligations for its Middelburg Ferrochrome plant.

In its appeal to the Minister, Samancor, which was criminally convicted and fined R2 million in 2014 for violations of environmental laws relating to waste at its Tubatse plant in Steelpoort, sought to prevent disclosure by the DEA of legal compliance audit reports for Middelburg Ferrochrome. Middelburg Ferrochrome featured in the DEA’s National Environmental Compliance and Enforcement Reports for four consecutive years between 2009 and 2013 (see links below) for violations that included operating six unauthorised waste sites, violations of air quality permits, disposal of contaminated water, air pollution from stockpiles, and non-reporting of emergency incidents. DEA eventually issued a compliance notice to Samancor and instituted criminal proceedings for these violations.

The release of these documents is an encouraging indication that the DEA is implementing the 2014 judgment of the Supreme Court of Appeal in Company Secretary of ArcelorMittal South Africa v Vaal Environmental Justice Alliance. The court confirmed in this judgement that organisations advocating for environmental justice are entitled to monitor the operations of private companies and their effect on the environment and that “there is no room for secrecy” for corporations operating in South Africa.

According to Centre for Environmental Rights (CER) attorney Robyn Hugo: “This decision by the Minister sets an important precedent in support of greater transparency in relation to evidence of companies’ compliance with environmental laws. The Minister also rejects Samancor’s allegation – which is one common to industries – that disclosure of environmental compliance data may cause ‘financial or commercial harm’.”

In August 2014, community organisation GMRA, represented by the CER, submitted a PAIA request to the DEA for  environmental records relating to Middelburg Ferrochrome. As Thomas Mnguni, GMRA secretary, explains: “The communities living next to Middelburg Ferrochrome were concerned about pollution from this plant. The people who live there always have white dust on their doorsteps, and they wanted to know how this facility was impacting on the health of communities living there. We wanted the records we requested in order to understand what the companies are supposed to be doing, and what they are actually doing – are they complying with the law?”

In accordance with PAIA, DEA gave notice of GMRA’s request to Samancor and invited their representations in relation to the request. Samancor, which had previously provided copies of its licences to GMRA in response to a PAIA request, opposed the disclosure of aspects of external legal audit compliance reports. DEA’s Information Officer rejected Samancor’s assertions, and granted GMRA’s request in November 2014.

Environmental licences routinely require independent external audits against the conditions of those licences. These audit reports are intended to aid authorities in monitoring compliance with those licences.

Samancor appealed DEA’s decision, arguing that June 2011 minutes (an appendix to the 2012 audit report), and a 2012 external audit for its slag site (an appendix to the 2014 audit report) contained “financial, commercial and technical information”, and that disclosing them was “likely to cause harm to the commercial and/or financial interests of Samancor”.

The CER, on behalf of GMRA, made written representations opposing the appeal, pointing out that Samancor had failed to justify its reasons for objecting to the disclosure of the two records. The objections pointed out that the lack of information on the pollution levels at and around Samancor’s plant seriously hampers GMRA’s ability to monitor and evaluate the immediate and ongoing impacts of the pollution at Samancor and to assess the remedial measures undertaken by Samancor.

In her decision, the Minister of Environmental Affairs found that Samancor had produced no evidence in support of their allegation that the disclosure of these records would harm Samancor’s interests.

PAIA requires that DEA now immediately provide access to these records to the GMRA.

The Centre for Environmental Rights has long argued in favour of the automatic and public availability of all environmental licences and compliance records on the basis that all information about impacts on the environment should be freely available to the public at large. “Not only will such disclosure facilitate the realisation of affected parties’ environmental rights, but it will promote compliance with environmental laws. Like drivers who slow down when there is a speed camera ahead, companies will improve their compliance when they know that they are being watched,” says Melissa Fourie, Executive Director of the CER. “What we would like to see is public, online registers of all environmental licences and compliance records.”

Download the Minister’s appeal decision here.

Download GMRA’s written representations to Samancor’s appeal.

Download the CER’s most recent report on its Transparency work, Money Talks: Commercial Interests and Transparency in Environmental Governance (November 2014).

Download the CER’s 2013 report Turn on the Floodlights: Trends in Disclosure of Environmental Licences and Compliance Data (March 2013).

See descriptions of Samancor’s compliance history in the following documents:

• National Environmental Compliance and Enforcement Report 2009-10, p. 25
• National Environmental Compliance and Enforcement Report 2010-11, p. 41
• National Environmental Compliance and Enforcement Report 2011-12, p. 38
• National Environmental Compliance and Enforcement Report 2012-13, p. 37

Contacts:

• Kensani Shilubane, coordinator, Greater Middelburg Residents’ Association 081 326 5900
• Thomas Mnguni, Greater Middelburg Residents’ Association secretary 083 555 0549
• Melissa Fourie, CER Executive Director, [email protected] 021 447 1647