When arsonists set fire to the United Phosphorus Limited (UPL) chemical plant in Durban on July 12, not only did they ignite a potent cocktail of chemical compounds but they set in motion a chain of events that could shift the country’s environmental landscape.
For about 12 days the acrid fumes permeated homes and businesses and tainted kilometres of beaches and coastal environment, in what national minister of forestry and fisheries and environmental affairs Barbara Creecy on Sunday described as “the most serious environmental catastrophe in recent times”.
What those instigators who torched the Cornubia warehouse — allegedly in the pursuit of freeing former president Jacob Zuma from his 15-month prison term — don’t know was that they unwittingly smoked out the illicit operations of the Mumbai-based multinational.
Creecy revealed on Sunday that the agrochemical company, which started operations three months before the incident, did so without environmental authorisation and 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.
The beaches and the coastal environment, not only in the vicinity of UPL, but for several kilometres to the north of the uMhlanga estuary mouth, has been seriously affected and may take several years to recover from this incident.
Releasing the preliminary findings of the intergovernmental investigation into the arson attack, Creecy announced a national clampdown on facilities that make or store toxic chemicals, to be implemented by Green Scorpion environmental inspectors who would conduct compliance and enforcement raids.
The objective of this is to regulate the entire agrochemical manufacturing sector so that companies that operate under the radar and pose a potential environmental risk can be brought into line.
The committee also recommended the establishment of a national “rapid response team” to deal with similar environmental disasters in future.
Those are vital tools in the fight against corporates that operate outside the law, but for now the impact of the chemical contamination is still a concern.
“Empirical evidence shows that an entire ecosystem, which includes the oHlanga tributary, the uMhlanga estuary, the beaches and the coastal environment, not only in the vicinity of UPL, but for several kilometres to the north of the uMhlanga estuary mouth, has been seriously affected and may take several years to recover from this incident. In the days after the fire, the air quality in the immediate facility was also affected,” the report found.
UPL has been asked to set top a mobile clinic in the affected communities and biological monitoring will commence immediately by collecting blood, urine and other biological samples from those exposed.
These samples will also contribute crucial evidence in the criminal investigation in terms of the Criminal Procedure Act. Only then will we be able to gauge the true extent of this catastrophe.
Not surprisingly the company’s response to date has been to deny, deflect and decry.
In the first few days after the attack, UPL came under fire for playing “cat and mouse” and providing unsatisfactory responses to multiple queries in the interest of public safety to reveal a list of chemicals at the warehouse.
The company denied withholding vital information from government officials.
Last week UPL issued a statement about extensive clean-up operations to the tune of R177m and claimed to have provided a finalised report on the outcome of chemical analysis of the beaches and seawater to the municipality, which recommended the reopening of the beaches — but the municipality denied receiving this.
UPL later clarified that it was in the process of submitting the report.
On Sunday, the company decried its lack of rebuttal to Creecy’s report as a “deliberate strategy to deny UPL sufficient time within which to enforce its rights and ultimately to prejudice its rights”.
It denied any non-compliance with the law, as alleged in the preliminary report.
It deflected attention away from its accountability saying: “UPL along with many other businesses were left to fend for themselves in the face of unprecedented and unforeseeable levels of violence and criminality.”
UPL said it was also disappointed that “very little” had been said about its “extraordinary efforts at the containment and cleanup of its lost products, its compliance with its Nema obligations and the Nema directives issued — all at considerable cost to UPL and in the most adverse circumstances possible”.
It seems that the “polluter pays principle” (PPP) — an important cornerstone of environmental law, which dictates that any pollution created by a process must be paid within the cost structures of production of that company or that PPP could also be applied to impose sanctions for wrongful doing or misconduct — has escaped its attention.
At the time of the looting and civil unrest, SA was sickened by the wanton vandalism, destruction and violence that reigned in KZN and parts of Gauteng.
Who knew that such tumult would expose the underbelly of injustice and result in the criminal liability of those who cause harm to the environment?
All eyes will be trained on the ball which is now firmly in the court of law and the NDPP’s green light to prosecute, particularly those who awoke to the overpowering stench of toxic fumes and a warped sense of corporate infallibility.
