The biggest environmental class action suit in Israeli history, which demands that two chemical factories in southern Israel pay NIS 1.4 billion ($400 million) in damages for polluting groundwater and a popular spring and stream at a nature reserve near the Dead Sea, entered its final stage at the Beersheba District Court on Monday.
The original petition was presented in March last year. Counsel for the companies responded in July 2019, denying any connection to the pollution, and on Monday, the petitioners responded to the companies with new affidavits.
The petition, which is aimed at raising cash to clean up contamination, claims that Rotem Amfert Negev Ltd and Dead Sea Periclase Ltd allowed tens of millions of cubic meters of industrial effluents — including radioactive ones — to pollute public property.
In one new affidavit, an American water chemist, Dr. Amanda Loundsbury, said she read with “great concern” letters from the Health Ministry that dismissed the possible implications for public health of radiation in the Bokek stream.
Together with Dead Sea Works, which extracts minerals from the Dead Sea, the two companies at the center of the case form part of Israel Chemicals Ltd, which, in turn, is controlled by the Ofer family’s Israel Corporation, the country’s largest holding company.
The judge must now decide whether there is a legitimate case and whether the petitioners have a legitimate claim to represent the public. If he decides in the petitioners’ favor, the two sides will probably negotiate a financial settlement.
Rotem Amfert and Dead Sea Periclase are located on the Rotem plain, a center for phosphate mining in the Negev desert southwest of the Dead Sea.
The suit, filed on behalf of Tel Aviv University’s Alon Tal and Bar Ilan University’s Noah Efron, along with tour guide and writer Bill Slott and teenage environmental activist Rotem Sirkovitch, charges that the release of toxic industrial waste from the 1970s until around 20 years ago wrought environmental havoc, with current pollution levels that are hundreds of times higher than what is allowed.
The factories concerned use large evaporation pools, or ponds, to reduce liquid waste materials to sludge.
The petition accuses them of allowing, or doing nothing to prevent, the seepage of toxic liquids into the soil which, according to the suit, subsequently entered the subterranean groundwater system, or aquifer. Groundwater can flow slowly for miles over long periods before bursting into the open air as springs, which in turn, supply above-ground streams. Groundwater contamination can emerge years after the original pollution event took place. The petition directly connects pollution in the aquifer, spring and 15-kilometer (nine-mile) stream with the activities of the factories, even though they are located some 50 kilometers (30 miles) away. (The YouTube video below shows the Ein Bokek reserve and the Dead Sea into which its stream waters flow).
In an affidavit to the court, Tel Aviv University hydrology professor Gedeon Dagan, an Israel Prize winner, criticized the plants for employing scientists — Duke University professor Avner Vangosh and Hebrew University professor Ovadia Lev — who were not hydrologists, and produced the results of water samples taken in recent months that showed rising salinity.
He dismissed attempts to pin the blame for the increased salinity on brine from the Dead Sea. Salinity is an indicator of increasing amounts of chemicals connected, for example, to fertilizers and urban wastewater.
The only reasonable possibility for the pollution, he said, was wastewater from the factories that had started to flow out decades ago,
Dagan expressed surprise that the respondents had ignored an internationally peer reviewed scientific article published earlier this year by Dr. Avi Burg, a senior hydrologist at the Geological Survey of Israel, and Dr. Yossi Guttman, until recently the chief hydrologist of the Mekorot national water company, in the prestigious Science of the Total Environment journal. That article concluded that most of the contaminants were still making their way down underground from the point at which they had seeped out of the factory pools.
Prof. Alon Tal — a veteran environmental activist who chairs Tel Aviv University’s Department of Public Policy — wrote that a freshwater pipe had recently been installed by the Mekorot water company to dilute contaminants in the stream. Factory staff had likely hidden this fact from the scientists, he said, who took water samples from the diluted section downstream from the pipe.
Also misleading the scientists, he went on, was the testing done on the factories’ evaporation pools: Because wastewater treatment processes had been overhauled, the current quality of the water in the pools was naturally far cleaner than it would have been during the period covered by the petition, which ended two decades ago — and thus the results of the testing were irrelevant to the complaint.
Water chemist Dr. Amanda Lounsbury, who came to Israel recently from Yale University and is carrying out research at Tel Aviv University, said in her affidavit that the pollution matched data collected from the factory’s effluent ponds in the 1990s which then showed barium, heavy metals such as cadmium, and materials that could be radioactive such as uranium, all of which could endanger public health.
“I read with great concern the letters from the Ministry of Health to Professor Tal, that summarily dismiss any potential for health implications from the radiation measured in 2018 in the stream, without any interest in exploring the reasons behind the significant increases measured and their source,” Lounsbury wrote. “The letters from the Ministry of Health contain absolutely no attempt to confront and explain the changes in these parameters.”
Both factories use phosphate rock from the Negev as a raw material, which is known to contain radioactive substances such as uranium.
She continued, “Given the public health implications… it is critical that a monitoring program be immediately implemented, including sampling and measurements in a certified laboratory and that radioactive presence in the water sources of the area be followed closely….there is a possibility that the level of radiation will increase. This is particularly true in the [section of the] Bokek Stream that is accessible to the public and near a major highway and hotel district — and has come to constitute a popular tourist destination for the general public including children, pregnant women and sensitive populations.”
She added that drinking water with high levels of active radioactive materials could seriously harm wildlife.
Quoting the Burg and Guttman article, Loundsbury warned that “the implications of this steady pollution process is that if urgent steps are not taken to manage the aquifer and the pollution dispersion, future contamination will increase and reach an irreversible level, leaving its mark on the Bokek stream for hundreds of years.
“In my opinion… the most reasonable explanation for the increase in parameters that are liable to have radioactive implications (like uranium) in the Ein Bokek stream water is the flow of the factory’s effluents.”
In an affidavit submitted in the first stage of the petition last March, stream ecology expert Prof Avital Gasith of Tel Aviv University said that the freshwater habitats of the Bokek nature reserve had once allowed extraordinary and rare communities of flora and fauna to thrive in an otherwise dry and salty environment. But salt quantities had jumped from 500 to 600 milligrams per liter in the stream during the 1990s — at that time the upper level permitted for drinking — to 4,550 mg per liter recorded in the aquifer by the end of 2017. He described the wastewater as a “silent polluter” which did not affect the stream water’s clarity but tasted “disgusting” if one dared to drink it.
Evidence suggested that the richness of invertebrate species in the stream had declined by 60 percent between 2004 and 2017 — invertebrates play a key role in the foodchain and ecology of freshwater habitats and their depletion can cause significant knock-on effects — and that serious damage had also been caused to water and stream bank plants, two out of seven of which were facing extinction, Gasith wrote. These could all be signs of the start of the stream’s complete ecological collapse.
Decision makers were responsible for ensuring immediate stream rehabilitation, he added, and for implementing one of the most important principles of environmental law — that “the polluter pays.”
The companies respond
In July, lawyers for the companies asked the court not to approve the request for a class action suit. They charged that the alleged link between the factories and the pollution was based on “assumptions at best” and partial and outdated information, that new water samples from the evaporation ponds disproved the petitioners’ case, and that the suit was aimed at blackening the companies’ reputation.
They also asserted that the petitioners had no property claims over the water sources, that “one-off” instances of pollution in the distant past could not be brought to court because of the statute of limitations, that the Health Ministry had found radioactivity levels in the Bokek stream to be safe for both drinking and bathing, and that in all events, the radioactive levels there were lower than elsewhere in the area, and were phenomena of nature.
“The respondents (the factories) do not deny — and didn’t hide in the past — that before the 1990s, when the company was under the control of the state [Israel Corporation was privatized in 1995 and acquired by the Ofers in 1999], effluents leaked from their evaporation pools.” They thus implied that the current owners could not be punished for seepage that took place before they were in control. At that time, they said, the technology did not exist to ensure hermetically sealed pools.
They also cast doubt on any obligation not to harm animals or plants.
The company’s lawyers admitted that questions were raised about a possible connection between the factories and a rise in salinity discovered when drilling for aquifer water was carried out in the mid 1990s. But, they said, scientists at that time were divided.
In all events, following that discovery, Rotem Amfert invested tens of millions of dollars to prevent future risks of seepage and rehabilitated suspected contaminated land, the lawyers wrote. From 1996 onward, Rotem Amfert used new evaporation pools doubly sealed off from the soil. During the same period, Periclase started treating its waste and sending some of its brine to the Dead Sea.
Alon Tal told The Times of Israel that “despite years of monitoring by official bodies, reports by the Geological Survey of Israel, the Water Authority and various other scientific bodies, no serious efforts have been made to enforce the law against these factories.
“Here is a situation where the state is failing in its responsibility to protect the public’s natural resources and abandons them to wealthy commercial interests.”
Ashalim stream disaster
This is not the first time that Rotem Amfert has been in the headlines in connection with pollution. In June 2017, the collapse of an evaporation pond wall at the plant sent some 100,000 cubic meters (more than 35,000 tons) of acidic water and other pollutants rushing through the Ashalim stream, a popular hiking route.
At least eight ibexes — a third of those living in the area — and numerous foxes and birds were found dead in the two weeks following the spill, according to the Environmental Protection Ministry, with concern that toxic pools would kill more wildlife desperate to drink during the hot summer.
The Environmental Protection Ministry banned the plant from using three evaporation ponds for gypsum flow that contained the highly acidic wastewater and ordered Rotem Amfert to install additional sensors, conduct frequent monitoring tests, and meet certain other conditions. A month after the spill, the ministry launched a criminal investigation into company managers and the parent company, Israel Chemicals Ltd. But after filing a NIS 397 million ($112.5 million) class action lawsuit, the state later agreed to out-of-court mediation.