/ 6 October 2021

Criminal probe recommended against multinational UPL for chemical spill

Durban Shopping Centres And Businesses Looted In South Africa
A private security employee watches as a factory burns in Durban’s Sea Cow Lake area on 12 July. (Photo by Darren Stewart/Gallo Images via Getty Images)

A criminal investigation into agrochemical producer United Phosphorus Ltd (UPL) must be instituted after a massive chemical spill from its Cornubia warehouse into a protected area during the July riots in KwaZulu-Natal. 

This was one of the findings of an investigation that has now revealed that the UPL warehouse did not have environmental clearance.

The July riots in KwaZulu-Natal and Gauteng were sparked by the incarceration of former president Jacob Zuma.  

The environment, forestry and fisheries department made the recommendation when it submitted a report into the blaze at the company’s Cornubia warehouse; the fire caused chemicals to spill over into the Umhlanga lagoon and the surrounding estuary and wetland ecosystem, destroying the natural environment.

A preliminary investigation into UPL’s compliance before and after the blaze found that the company’s operations involved the unlawful storage of chemicals classified as “a dangerous good”. 

An environmental authorisation (EA) would have been required prior to the storage operations commencing, because the volumes of chemicals stored in the warehouse was significant (exceeding a volume of 500 cubic metres), therefore constituting a “listed activity” identified in terms of the National Environmental Management Act. 

The Act stipulates that storage cannot commence without environmental authorisation. 

“The EIA [environmental impact assessment] process would have, among other things, assessed the readiness of the facility to respond to an emergency situation. Furthermore, any EA issued would have been subject to a number of conditions aimed at mitigating risks identified,” the department told parliament’s portfolio committee. 

In addition, the department found that a scheduled activities permit had not been obtained by UPL from the eThekwini metropolitan municipality. The municipality, according to the department, did not grant permission for the warehouse to be occupied by tenants.

“The unlawful establishment and operation of the UPL facility created a point source of pollution in that particular location, close to a river system, a residential neighborhood, a sensitive protected area and the coastal environment,” the department said in the report. 

“The environment in this area is considered to be significantly damaged as a result of the pollution from this incident which may have resulted in an entire ecosystem service loss.”

The Umhlanga Lagoon Nature Reserve is a tourism hotspot and a free recreational facility. It is a prime research area and an attraction for migrant bird species, as well as marine species. The UPL spill caused a collapse in the ecosystem’s functioning and the department says the true extent of the damage is still unknown.

The department said that the National Prosecuting Authority will make a final decision on prosecution after the criminal investigation. It told parliament that this process must be complemented by restorative justice, compensation for damages and a “polluter pays” principle. 

UPL claims it has spent R177-million in clean-up operations and on monitoring the effects of the spill on public health. In its statement, the company said that it was co-operating with authorities and the government. 

“Despite the spillage resulting from factors beyond UPL’s control as a result of the fundamental breakdown in law and order, it has spared no effort or expense in containing the situation,” it said earlier this month. 

Tunicia Phillipsis an Adamela Trust climate and economic justice reporting fellow, funded by the Open Society Foundation for South Africa.