Chemical giant UPL flouted regulations before toxic spill, claims minister

Chemical giant UPL, owner of the Durban pesticide warehouse that was set alight during July’s looting, failed to obtain the correct critical risk assessment or planning permission for the warehouse from the eThekwini Metro.

This should have been done before the facility was torched by looters in what has turned out to be a huge environmental disaster from which it will take years to recover.

This was announced by minister of forestry, fisheries and environmental affairs Barbara Creecy on Sunday when she released her department’s preliminary findings into the incident at Cornubia.

The ongoing fallout from the resulting toxic air cloud and chemical spill has badly impacted the coastal environment, not only in the vicinity of the warehouse, but for several kilometres to the north of the uMhlanga estuary mouth.

The warehouse, which was used to store toxic pesticides and chemical products, was destroyed during days of looting and arson, allegedly carried out by supporters of former president Jacob Zuma in protest against his imprisonment.

The report revealed that a criminal investigation into the disaster was initiated in September and would continue to be led by the Green Scorpions.

Creecy said an independent team of investigators comprising environmental management inspectors from the national and provincial departments was collecting evidence, including samples of sand, water, fish and plants, to determine whether there was any criminal liability in relation to the harm caused to the environment.

“The probe will also take into account the liability of other role players that may have been involved in this matter.”

The findings indicate that UPL was not in possession of the environmental authorisation it was required to have applied for from the KwaZulu-Natal department of economic development, tourism and environmental affairs before establishing its operations in Cornubia three months before the incident.

On top of this, the company failed to obtain a critical risk assessment or planning permission from the eThekwini metro in terms of the Occupational Health and Safety Act and relevant municipal bylaws.

UPL’s operations involved the unlawful storage of chemicals, classified as “a dangerous good”.

KwaZulu-Natal MEC for economic development, tourism and environmental affairs Ravi Pillay said findings would ultimately be made by a court of law, once the national director of public prosecutions (NDPP) had made a decision on whether to prosecute.

So far 13,000 tons of contaminated solids and 23.4-million litres of contaminated liquids have been professionally removed from the UPL site and environment below it.

“I would like to point out that we remain in an emergency situation in this area as a result of the fire event and spill. The danger has not yet passed,” Pillay said.

UPL said it was “deeply disappointed” Creecy “has decided to release her department’s preliminary findings of an investigation into a fire incident ... without any prior discussion with the company”.

It said it received the preliminary report late on Saturday night, “a matter of mere hours before its release”.

UPL will in due course respond to allegations of non-compliance in the appropriate forums. For now, it intends to get on with the clean-up and rehabilitation.

—  UPL

It was still considering the report, but felt it did not adequately address the fact that emergency services were unable to contain the fires and that UPL, with many other businesses, were “left to fend for themselves in the face of unprecedented and unforeseeable levels of violence and criminality”.

UPL said being given such short notice of the circulation of the preliminary report appeared to be a deliberate strategy to deny the company enough time to enforce its rights and denied alleged non-compliance with the law.

The company complained that it was not credited for “extraordinary efforts at the containment and cleanup of its lost products, its compliance with its Nema (National Environmental Management Act) obligations and the Nema directives issued — all at considerable cost to UPL and in the most adverse circumstances possible”.

“UPL will in due course respond to allegations of non-compliance in the appropriate forums. For now, it intends to get on with the cleanup and rehabilitation. It has had extensive interactions with the authorities in the past, and trust that the minister’s current visit and actions have not prejudiced that,” the company said in a statement.