. Picture: REUTERS
. Picture: REUTERS

An environmental activist law group is considering legal action to compel the government to hold water-polluting coal miners in Mpumalanga to account. 

The Centre for Environmental Rights (CER) released a report on Wednesday that assesses the compliance with water-use licences of eight large coal mines in Mpumalanga and includes operations belonging to Anglo American, Glencore, South32, Exxaro and Wescoal.

The report found “gross violations and water pollution by the operators, as well as massive failures by the department of water and sanitation (DWS) and supposedly independent auditors”.

In June the CER launched the “Deadly Air” case on behalf of environmental justice groups that hopes to force the government to take meaningful action to enforce its own air-quality management plan in the highly polluted “Highveld priority area”, which spans parts of Mpumalanga and Gauteng.

Governments and businesses worldwide are feeling the pressure to tackle environmental issues as worries about climate change intensify. This is not limited to polluters — even banks are being lobbied by shareholder activists to not finance fossil fuel projects.

While non-compliance with a water-use licence is a criminal offence and can lead to the suspension of the licence, the department of water and sanitation has failed to take any meaningful enforcement action against offending companies, the CER said.

“For these operations, it appears that the regulatory system — from issuance of a water-use licence to accountability for non-compliance — has effectively disintegrated [and] companies and independent auditors are complicit in taking advantage of the regulatory breakdown.”

Leanne Govindsamy, programme head for corporate accountability and transparency at CER, said while the group is sympathetic to the severe institutional challenges facing the DWS, attempts to engage it on this urgent matter have so far been unsuccessful.

“We will keep trying to engage over the next month or so. Then we will kick our other activities into gear in terms of what other litigious measures there are available to us,” Govindsamy said. 

The DWS did not respond to a request for comment.

Following the release of the CER’s report, Anglo American Coal and Exxaro said they are still studying the full document and will respond in due course.

South32 said that as a matter of principle, it was committed to compliance with legal environmental requirements. “We further commit to following up on the substantive nature of the issues raised in the report and to communicate the outcome to CER,” it said. 

Glencore said its operations act in accordance with regulatory requirements of the governing authorities in SA.

Wescoal did not respond to requests for comment.

In its engagements with the companies, the CER said many blamed the DWS for their own inability to comply with licence conditions, due to lengthy delays and inaccuracies in the water licences themselves.

“I think there is also a real concern from companies about how to run a mining operation without having an efficient regulatory system in place. But it by no means absolves them of responsibility for abusing the system,” Govindsamy said. 

The report also found that independent auditors, who perform compliance audits to ensure licence conditions are met, were complicit in the non-compliance. 

“In the independent reports we have assessed, we have found many unsubstantiated or inaccurate conclusions and failures to report pollution incidents, deviation from pollution monitoring and violations of licence conditions,” Govindsamy said.

Ultimately, the concern is that the cumulative effect of coal mining in the area on the Olifants River catchment — one of SA’s most stressed in terms of water quantity and quality — will harm human health.