Pollution issue goes to court

TWO environmental groups have gone to court to force the eThekwini Municipality to release the air pollution licences and compliance reports of Durban’s Sapref and Engen petrol refineries.

The two groups said in legal papers lodged in the Durban High Court that the city had refused their request for access to this information in terms of the Promotion of Access to Information Act.

In their papers, it was noted that other cities released information about refineries.

The application has been launched by the South Durban Community Environmental Alliance (SDCEA) and the Vaal Environmental Justice Alliance (Veja) after the city’s information officer turned down requests for access on the basis that the records contained trade secrets, including financial, commercial, scientific or technical information, which could cause harm to the interests of Engen and Sapref if disclosed to the public.

Full access

But attorneys from the Centre for Environmental Rights and the Legal Resources Centre argue that it is not clear on what legal basis the information was withheld, since recent amendments to environmental laws required the public disclosure of such information.

Nicole Löser, an attorney at the Centre for Environmental Rights, noted that unlike Durban, the City of Cape Town recently granted full access to similar records for the Chevron refinery in Cape Town.

Veja had also obtained access to similar pollution data for Sasolburg’s Natref refinery.

Desmond D’Sa, the co-ordinator of the SDCEA, said he had no reason to believe that the information in the Chevron atmospheric emission licence would contain any information materially different to the Engen and Sapref refinery data.

D’Sa also noted that while sulphur dioxide emissions in Durban had declined by almost 45% since 1997, data from the eThekwini health department suggested that the Engen and Sapref refineries remained the largest sources of sulphur dioxide pollution in the city.

City data suggested that each refinery belched out more than 17 tons of this noxious gas every day, with a total of about 300 000 tons dumped into the air each year.

A peer-reviewed health study by the universities of KwaZulu-Natal and Michigan in 2007 also showed that children living near South Durban’s heavily polluted industrial area were at much greater risk of asthma and other respiratory diseases, compared with children in the city’s north.

The same study also recorded “substantial levels” of benzene and other cancer-causing air pollution emissions in South Durban.

D’Sa said despite government efforts to reduce the problem, air pollution remained a “serious concern” for people in South Durban.

Denying the public access to such information could not be left to the “mere say-so” of eThekwini information officers, who had provided no evidence that they had attempted to weigh up the public interests of information disclosure.

“The applicants contend that the disclosure of the requested documents is required in the public interest, as the disclosure of the record would likely reveal evidence of an imminent and serious public safety or environmental risk.”

He argued that the public health interest should outweigh the commercial interests of third parties such as a petrol refinery.

“The South Durban Basin has been recognised as an air pollution hot spot by national government. It is also recognised as one of the most highly industrialised and heavily polluted areas in the country.

“The high level of air pollution in the South Durban Basin is attributable, in significant measure, to the Engen and Sapref petroleum refineries.

“The other main contributing industries and factors are the emissions of the AECI Chemical Company group and Mondi Paper Company, motor vehicle emissions and the domestic burning of fossil fuels,” D’Sa said.

eThekwini, Engen and Sapref have until May 14 to file answering affidavits if they opt to oppose the litigation.