Postnet Suite 87, Private Bag X033, RIVONIA. 2128. FAX: 011 781 6154 TEL: 011 781 6152 E-MAIL: [email protected]

June 19, 2007.

The Honourable Minister of Water Affairs and Forestry, Private Bag X313, PRETORIA. 0001. Sedibeng Building, 185 Schoeman Street, PRETORIA.

FOR ATTENTION: MRS. LINDIWE BENEDICTA HENDRICKS

Dear Madam,

RESPECTFUL REFUTATION OF THE WRITTEN RESPONSE TO QUESTIONS RAISED IN PARLIAMENT PERTAINING TO THE CONTAMINATION OF THE WONDERFONTEINSPRUIT CATCHMENT

We hereby refer to the following internal questions, which were raised is Parliament by Mrs. J. Semple and which are subjoined hereinafter.

We shall thereafter, respectfully submit our refutations to the written responses.

NATIONAL ASSEMBLY

FOR WRITTEN REPLY

QUESTION NO 397

DATE OF PUBLICATION IN INTERNAL QUESTION PAPER: 16 MARCH 2007 (INTERNAL QUESTION PAPER NO 9)

397. Mrs J A Semple (DA) to ask the Minister of Water Affairs and Forestry: (1) Whether any studies have been conducted on the Wonderfonteinspruit catchment on the West Rand to determine the pollution levels; if not, why

1 not; if so, (a) what are the names of the studies, (b) who are their authors, (c) what are the dates of publication or completion and (d) what are their respective findings in summarised form;

(2) (a) what are the current levels of (i) 235U and (ii) 238U in the catchment, (b) when were these measurements last taken and (c) what are the causes of this contamination;

(3) whether any remedial steps are being taken to rehabilitate the catchment; if not, why not; if so, what are the relevant details;

(4) whether any steps are being taken to charge (a) past and (b) current polluters of this catchment with the cost of rehabilitation; if not, why not; if so, what steps? N618E ---00O00--- REPLY:

(1) Yes.

(1)(a) The name of the study is “An Assessment of Sources, Pathways, Mechanisms and Risks of Current and Potential Future Pollution of Water and Sediment in Gold-Mining Areas of the Wonderfontein Catchment”, Water Research Commission Report No 1214/1/06.

REFUTATION:

The following studies, pertaining to the Wonderfonteinspruit catchment, have been conducted:

. The Jordaan Commission Report, 1960 . Radioactivity and the Leakage of Radioactive Waste Associated with Witwatersrand Gold and Uranium Mining. Coetzee, H. 1995. In Merkel, B., Hurst, S., Lohnert, E.P. & Struckmeier, W. (Eds.) Proceedings of the International Conference and Workshop in Freiberg, Germany, October 1995. GeoCongress, 1. Koln, Pp 34-39. . Radioactivity Study on Sediments in a Dam in the Wonderfonteinspruit Catchment. Coetzee, H., Wade, P., Ntsume, G. & Jordaan. W. 2002. DWAF Report. Pretoria: Department of Water Affairs and Forestry. . Reliance on Existing Wetlands for Pollution Control Around the Witwatersrand Gold/Uranium Mines in South Africa – Are They Sufficient? Coetzee, H., Wade, P. & Winde, F. 2002. In Merkel, B.J., Planer-Friederich, B. & Wolkersdorfer, C. (Eds.). 2002. Uranium in the Aquatic Environment. Berlin: Springer. Pp 59-65. . Contamination of Wetlands by Witwatersrand Gold Mines – Processes and the Economic Potential of Gold in Wetlands. Coetzee, H., Venter.J. &

2 Ntsume, G. 2005. Council for Geosciences Report No. 2005-0106. Pretoria: Council for Geosciences. . An Assessment of Sources, Pathways, Mechanisms and Risks of Current and Potential Future Pollution of Water and Sediments in Gold-Mining Areas of the Wonderfonteinspruit Catchment. Coetzee, H., Winde, F. & Wade, P.W. 2006. Pretoria: Water Research Commission. . Report on the Radioactivity Monitoring Programme in the Mooi River (Wonderfonteinspruit) Catchment. IWQS. 1999. Report No. N/C22/00/RPQ/2399. Pretoria: Institute for Water Quality Studies. . Overview of Radioactivity in Water Sources: Uranium, Radium and Thorium. Kempster, P.L., Van Vliet, H.R., Looser, U., Parker, I., Silberbauer, M.J. & Du Toit, P. 1996. IWQS-No:N/0000/00/PRQ/0196. Pretoria: Institute for Water Quality Studies. . Tier 1 Risk Assessment of Selected Radionuclides in Sediments of the Mooi River Catchment*. Wade, P.W., Woodbourne, S., Morris, W.M., Vos, P. & Jarvis, N.W. 2002. WRC Project No. K5/1095. Pretoria: Water Research Commission. . The Significance of Groundwater-Stream Interactions and Fluctuating Stream Chemistry on Waterborne Uranium Contamination of Streams – A Case Study from a Gold Mining Site in South Africa. Winde.F. & Van Der Walt, I.J. 2004. In Journal of Hydrology, 287. Pp 178-196. . Impacts of Gold-mining Activities on Water Availability and Quality in the Wonderfonteinspruit Catchment. Winde, F. 2005. In Coetzee, H. (Ed.) An Assessment of Current and Future Water-pollution Risk with Application to the Mooirivierloop (Wonderfonteinspruit). WRC Report No. K5/1214. Pp 14-38. Pretoria: Water Research Commission. ______*In terms of the said Report it was concluded that: . Radionuclides do accumulate in the sediments of the Mooi River catchment. . The main radionuclide of interest, being uranium, seems to be absorbed to the environmental phases: carbonate, iron and manganese oxyhydroxides, and organics (with a slight possibility of being included in sulphide components). . Uranium may be remobilized into the water column by perturbation of TDS, pH and oxidation potential. . Because they had 238U- levels higher than the Nuclear Energy Act stipulation, six of the study sites had a positive Tier 1 Risk Quotient.

(1)(b) The study was compiled by H Coetzee.

(1)(c) The study is dated March 2006.

(1)(d) The study found that mining activities contributed to the radionuclide content of the water, but that the dissolved radionuclides decreased downstream of the mining activities. Further follow-up indicated that the radionuclides were

3 concentrated in the sediments within the catchment and the objective of the study referred to in (1)(a) above, was to, amongst others, establish the potential risk that the radionuclides may be remobilised from the sediments.

We are furthermore informed, in terms of the WRC Report 1214 that:

. The contaminants of greatest concern within the Wonderfonteinspruit Catchment are uranium, cadmium, zinc and cobalt, with uranium and cadmium potentially having the highest environmental impact; . Uranium is emitted by a single industry, namely the gold mining industry; . In the Upper and Lower Wonderfonteinspruit uranium concentrations are significantly elevated relative to the local background.

The conclusions of this Coetzee study were that mobilisation of radionuclides from the sediments could be possible under certain circumstances, for example if the sediments should dry out, if the river should become acidic due to acid mine drainage and potentially due to acid rain falling within the catchment. - 2 -

While the report indeed pointed out certain risks that could potentially remobilise radionuclides, the chances that it may indeed happen are being debated and even rejected for the primary reason that the major sewage works situated within the catchment will continue to discharge treated sewage into the Wonderfonteinspruit, therefore preventing the sediments from drying out. The same treated sewage water flowing down the Wonderfonteinspruit would also act as a buffer and would therefore prevent the river from becoming acidic. The report clearly states that: “profound changes of uranium speciation and the associated solubility of uranium due to diurnal or seasonal fluctuations of pH or Eh are unlikely….” Future management of the Wonderfonteinspruit, however, will have to take these aspects into consideration.

REFUTATION

We refer to ss 10.5 of the WRC Report No. 1214 ([age 168) in this regard:

“ The current flow of the Wonderfonteinspruit is dominated by anthropogenic discharges, with mine fissure water playing a major role, particularly in the Lower Wonderfonteinspruit catchment. These inputs result in a relatively large perennial flow. The other major perennial input is the discharge of sewage-treatment works along the catchment. This input will not continue indefinitely. All mines have a finite

4 life, and on closure the pumping of fissure water will cease. This has already happened in the upper Wonderfonteinspruit catchment.

Mine closure is expected to have the following effects:

1. Following mine closure the fissure-water input will immediately cease, considerably decreasing flow in the river. Input from sewage-treatment works will continue, although the population may be reduces as the local mining-based economy slows down. It is likely that portions of the river not fed by dolomitic springs will be returned to their premining non-perennial status. The lower portion of the river, which was historically fed by dolomitic springs, will probably undergo a dry period while the aquifer which has been dewatered recovers.

This low-flow regime will continue for a period of several years, possibly decades, during which time the reducing conditions currently found are likely to be compromised. If the sediments are allowed to dry out, they could become significant source of acid drainage by virtue of their sulphide content. The combination of oxidizing and acidic conditions is ideal for the release of metals trapped in the sediment. 2. This phase will be followed by the groundwater-rebound phase, during which water levels will rise in the underground workings. This has already happened in the Krugersdorp-Randfontein area (Coetzee et al., 2003), where water has started to a. Decant from a number of shafts into the Tweelopiespruit catchment immediately to the north of the Wonderfonteinspruit. b. Flow into the local dolomitic aquifer. 3. This water has a low pH and a high acidity, owing to the elevated ferrous iron content in the decanting water. The water level is still rising in this area and may decant into the Wonderfonteinspruit. This inflow would have a serious impact on any contaminated sites downstream as was seen in the initial decant, where acid mine water was discharged into the Robinson Lake. The combination of pH- and redox-driven reactions resulted in a measured uranium concentration of 16mg/l, and resulted in the NNR declaring the lake a radiation area.

In the lower Wonderfonteinspruit catchment, three models exist as to the likelihood of such a decant occurring. Since the dolomitic eyes are below the levels of the shafts in each compartment, decant will happen at the eyes. Much has been speculated relying on the buffer capacity of dolomite; however, acid mine water can armour the dolomite with a ferric hydroxide gel if oxygen is present. This would limit the potential of the dolomite to neutralize the low pH in the long term.

Whether this decant occurs at Turffontein Eye or at all the eyes in the dewatered area, its impact is likely to be significant…

5 4. Following the rebound and acid decant phases, infiltrating rainfall will determine the flow out of the dolomite, with the possibility of dry periods during winter and drought periods having been proposed in some models. During these periods wetland sediments may well be exposed to air, leading to acid production and the release of metals.

The current situation is therefore not sustainable in the longer term. Water and sediment analyses indicate that the heavy-metal contaminant stream does migrate downstream, and the likely impacts of the rewatering scenarios sketched here imply that sediments may become potential sources of contamination.”

(Emphasis added.)

We are furthermore informed that in terms of “An Assessment of Sources, Pathways, Mechanisms and Risks of Current and Potential Future Pollution of Water and Sediment in Gold-Mining Areas of the Wonderfontein Catchment”, Water Research Commission Report No 1214/1/06:

. The decant from the shafts in the Randfontein area into the Wonderfonteinspruit would have a serious impact on any contaminated sites downstream in view of the consequences of the initial decant into the Robinson Lake where the combination of pH- and redox-driven reactions resulted in a measured uranium concentration of 16mg/l; . Deposition of suspended uraniferous stream sediments leads to the contamination of topsoil of rather large areas; . Bioaccumulation of uranium by vegetation and the burning of such vegetation in annual veld fires can concentrate the accumulated uranium in the ash and may contribute to the contamination of floodplain sediments; . Uranium can enter the human body via a number of pathways from the source, which is the largely tailings dams in the catchment, through groundwater, to soil, and to river water. . The principal modes of contact are ingestion of water and food products and inhalation of dust. . The majority of the inhabitants of the Wonderfonteinspruit live in informal settlements, using contaminated ground- and stream water for personal hygiene and drinking. With the above-average infection rates of HIV/AIDS, and chronic and acute malnutrition, this subpopulation is particularly vulnerable to additional stress of the immune system by contaminants such as uranium.

In terms of ss 13.6.11 of the State of the Environment Report, 2002, North West Province it is stated:

"Indicators - indicators of environmental radioactivity include: Number of cancer cases reported in a potentially contaminated area directly

6 attributed to the chronic effects o radioactivity e.g. pancreatic cancer. It is however, usually very difficult to relate cancers to naturally occurring radionuclides partly because of wide spread occurrence of all cancers and pervasiveness of NORM. Only with very high values over a large population group could you hope to start to get a quantifiable epidemiological effect."

WE THEREFORE CALL RESPECTFULLY, ALBEIT URGENTLY UPON GOVERNMENT TO CONDUCT AN EPIDEMIOLOGICAL STUDY IN ORDER TO ASSESS THE HEALTH RISKS PERTAINING TO EXPOSURE OF THE SUB POPULATION GROUPS TO URANIUM. IN THE ABSENCE OF THE QUANTIFIABLE EPIDEMIOLOGICAL EFFECTS, THE PRECAUTIONARY OR RISK AVERSE PRINCIPLE IN TERMS OF THE NEMA, MUST APPLY.

(2)(a)(i) and (2)(a)(ii) The average Uranium concentration at the monitoring point as mentioned above is far less than 10 micrograms per litre (ug/l), the Maximum Recommended Drinking Water Quality is 70 ug/l. The average results for radionuclides are less than 0.1 milli Sievert per annum (mSv/a), the Maximum Public Exposure is 1 mSv/a.

REFUTATION:

We concur that in terms of Section 13.6.1 of the State of the Environment Report 2002 (North West Province) it is stated: "Since uranium is both a radioactive element and a highly reactive heavy metal...it has both radiological as well as chemotoxicity effects on living organisms. Therefore the maximum Uranium concentration recommended in drinking water is 0,07mg/l."

However,

"If 0,284 mg/l is exceeded, human health may be at risk due to chemical toxicity."

In terms of the findings of the Water Research Commission Report No. 1095/02 and the Water Research Commission Report No. 1214/06:

Compared with the global mean concentration of uranium in fresh water (discharge-unweighted) of 0,0004 mg/l the maximum concentration reported in stream water in the Wonderfonteinspruit is up to 1 000 times above natural

7 background levels and that “ the uranium concentrations in the seepage from slimes dams are usually between a thousand to a million times higher and therefore likely to exceed the natural background in many of the receiving watercourses in mining areas by several orders of magnitude.” The Blaauwbank Dam, e.g. is reported to contain uranium concentrations of “up to 900mg/kg.” (Please see the WRC Report No 1214/1/06, page vi in this regard.)

It was found that the carcinogenic risk-quotient estimate for the surface water is 2,22 and the chemical risk estimate for the water is 6,67. An acceptable risk quotient is below 1,00. Both risk quotients might be up to two orders of magnitude higher if maxima of uranium concentrations found in previous studies are considered.

It is a matter of fact that a standard of 0,5Bq/g or 500Bq/kg has been determined for U concentrations as the limit for regulatory control set by the National Nuclear Regulator. The public was informed in terms of the official WRC Report 1214/1/06 that 16mg/kg uranium is equivalent to an activity concentration of 0,2Bq/g. The findings of the WRC Report 1214/1/06 confirmed that: “The measured uranium content of many of the fluvial sediments in the Wonderfonteinspruit, including those off mine properties and therefore outside the boundaries of licensed sites, exceeds the exclusion limit for regulation by the National Nuclear Regulator .”

The NNR was called upon: “A decision is therefore necessary by the NNR regarding a regulatory response to this problem.”

The NNR’s Disclaimer of the methodology used by the WRC for the radiological (carcinogenic) health risk assessment in the WRC Report 1214/1/06 and the NNR’s expressed declaration, namely:

“The NNR is undertaking its own investigation and will make the findings available to the public”

has cast an onus upon the NNR to prove that the findings of the WRC Report 1214/1/06 regarding the radiological (carcinogenic) health risk assessment are wrong. The duty to adduce evidence to the contrary was therefore shifted to the NNR. At the time of writing the NNR has not adduced evidence to the contrary. The findings of the WRC Report 1214 therefore stand at present as undisputed evidence of the health risk.

(2)(b) My Department is monitoring radionuclides on a monthly basis at a number of monitoring points in the Wonderfonteinspruit. The last samples were taken on 11 April 2007.

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REFUTATION In terms of ss 10.3 (page 167) of the WRC Report No. 1214 it was recommended:

“Conventional sampling programmes, such as that undertaken by the Department of Water Affairs and Forestry for radionuclides (IWZS 1999) must take the diurnal, as well as the seasonal variations into account. For example, in the diurnal variations we see an increase in temperature and Eh, and a decrease in pH occurring at night, when most fissure water is discharged. These factors will combine to increase the solubility of uranium. All samples for the DWAF study were, however, collected during the day- time hours, some at approximately the same time of day on the same day of the week for each sampling point.”

It is believed that the above-mentioned recommendations have not been adhered to.

(2)(c) The study found that the sources of the radionuclides originate from mining activities which started within the catchment, in the late 1800s.

(3) The Wonderfonteinspruit Action Group was established in 2006 by the mines, interested and affected parties, the Departments of Water Affairs and Forestry, Minerals and Energy and the National Nuclear Regulator (NNR), specifically to address the slimes that were spilled into the Wonderfonteinspruit over the many years of mining activities in the catchment. The first phase is to determine the exact position of the slimes and thereafter to clean up firstly the lower parts of the Wonderfonteinspruit and in further phases, the rest of the Wonderfonteinspruit. Sediment sampling is currently being conducted and the results are expected by June 2007.

REFUTATION

The Wonderfonteinspruit Action Group was initiated by GoldFields, one of the polluting gold mining companies within the Wonderfonteinspruit catchment. It is respectfully submitted, that it is believed that this initiative was actuated by the failure on the part of the DWAF to timeously address historic and current heavy metal contamination of the Wonderfonteinspruit catchment and the foreseeable risks and hazards. Bigen Africa was appointed as consultants by GoldFields in order to assess the contamination of the Lower Wonderfonteinspruit. The findings of the research were submitted to NECSA for verification and at the time of writing, the findings have not yet been made available.

9 (4)(a) and (4)(b) No steps are being taken to lay criminal charges against any past polluters. The reason is that previous policies in general ignored the associated environmental impacts. Where pollution may take place, the Department of Water Affairs and Forestry focuses on the clean up of such pollution rather than prosecution, however, charges may be laid against polluters at any stage. It is therefore imperative that all mining and industrial development, whether for poverty alleviation, industrial growth or whatever purpose, must be conducted in a sustainable manner where one of the key focus areas must be the consideration of impacts, both short and long term.

REFUTATION:

We must infer from the principles of the Mineral and Petroleum Resources Development Act, No 28 of 2002 that liability for environmental pollution and responsibility to remedy rest upon all polluters without exception, inclusive of historic pollution and historic environmental degradation. Section 38, subsections (1) (a) and (e); and subsection 2 of the MPRDA stipulates:

“The holder of a reconnaissance permission, prospecting right, mining right, mining permit or retention permit- (a) must at all times give effect to the general objectives of integrated environmental management laid down in Chapter 5 of the National Environmental Management Act, 1998 (Act No. 107 of 1998); (e) is responsible for any environmental damage, pollution or ecological degradation as a result of his or her reconnaissance prospecting or mining operations and which may occur inside and outside the boundaries of the area to which such right, permit or permission relates. (2) Notwithstanding the Companies Act, 1973, or the Close Corporations Act, 1984, the directors of a company or members of a close corporation are jointly and severally liable for any unacceptable negative impact on the environment, including damage, degradation or pollution advertently or inadvertently caused by the company or close corporation which they represent or represented.”

The duty of care provisions contained in the National Water Act, 36 of 1998 and the National Environmental Management Act, No 107 of 1998 create a general duty not to pollute and to remediate where pollution has been caused, namely that:

“ Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or in so far as such harm to the environment is authorized by law or can not be reasonably be avoided or stopped, to minimize and rectify such pollution or degradation of the environment.” – Section 28(1) of the NEMA.

10 In addition these provisions create retrospective liability. Both the NEMA and NWA include historical contamination as a ground for the obligation.

In terms of Section 19, subsections (3); (4) ;(5) and (6) of the NWA, if a person fails to take the measures required by subsection (1) of Section 19 of the NWA:

“to- (a) commence taking specific measures before a given date; (b) diligently continue with those measures, and (c) complete them before a given date.

(4)Should a person fail to comply, or comply inadequately with a directive given under subsection (3) the catchment management agency may take the measures it considers necessary to remedy the situation.

(5)Subject to subsection (6) a catchment management agency may recover all costs incurred as a result of it acting under subsection (4) jointly and severally from the following persons: (a) Any person who is or was responsible for, or who directly or indirectly contributed to the pollution or the potential pollution; (b) The owner of the land at the time when the pollution or potential pollution occurred, or that owner’s successor-in-title; (c) The person in control of the land or any person who has a right to use the land at the time when- (i) the activity or the process is or was performed or undertaken, or (ii) the situation came about, … (6) The catchment management agency may in respect of the recovery of costs under subsection (5), claim from any other person who, in the opinion of the catchment management agency, benefited from the measures undertaken under subsection (4) to the extent of such benefit.

(7) If more than one person is liable in terms of subsection (5) the catchment management agency must, at the request of any of those persons, and after giving the others an opportunity to be heard, apportion the liability, but such apportionment does not relieve any of them of their joint and several liability for the full amount of the costs.

(Emphasis added.)

From the aforementioned subsection 6 it can clearly and logically be inferred that parties, who generally derived some direct or indirect financial benefit from the harmful and polluting activities of the gold mining companies ought to be held liable for the harm caused, even retrospectively, that is, where such harm occurred substantially prior to the enabling legislation.

11 CONCULSION

We reasonably and legitimately looked to the relevant organs of state for assistance in addressing the historic and current contamination of the Wonderfonteinspruit catchment. In this regard we are not destitute of support in the enactments of Parliament. In terms of the National Water Act, No 36 of 1998, the purpose of the said Act in order to ensure that the nation’s water resources are protected, conserved, managed and controlled in ways which take into account amongst other factors:

. Protecting aquatic and associated ecosystems and their biological diversity; . Reducing and preventing pollution and degradation of water resources; and of recalling a trust, enshrined by the axiom of our laws, the Constitution of the Republic of South Africa (Act 108 of 1996), the only criterion by which we can judge the matter under consideration, to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation.

Regrettably by the failure of the relevant organs of state to have taken timeous action against polluters, ordinary taxpayers, who have had no connection whatsoever to the harm and degradation caused by historic and current gold mining activities, and derived no benefit from it, are now compelled to pay for the remediation of the affected environment. This is clearly against the principles of the NEMA, the MPRDA and the NWA and the maxims of our Constitution, namely to answer to the call of environmental justice, fairness and equity.

Yours respectfully, MARIETTE LIEFFERINK. For EARTHLIFE AFRICA (JHB), PUBLIC ENVIRONMENTAL ARBITERS, gROUNDWORK and in affiliation with GREEN CROSS, THE CHRONICLE GROUP, RANDFONTEIN ENVIRONMENTAL ACTION GROUP, PELINDABA WORKING GROUP and others.

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