Legislators want tougher measures and inspections for chemical storage areas to avoid another UPL disaster

Dead fish in uMhlanga estuary after the UPL chemical spill on 12 July 2021. (Photo: Ben Carnie)

By Tony Carnie

28 Nov 2021

Most KwaZulu-Natal legislators seem united about holding UPL to account for the Cornubia chemical inferno and the resulting pollution of the human and natural environment — except for a minority party that took the startling view that the Indian-owned farm poisons giant should not be punished for being in the ‘wrong place’ at the wrong time.

Months after large volumes of pesticides and other chemicals poisoned the air, sea, rivers and soils around Durban, legislators want tougher regulation of hazardous chemical facilities — including an immediate audit of all companies that store or handle toxic or dangerous substances.

The calls were made by members of the KwaZulu-Natal legislature on Friday during a debate on the aftermath of the 12 July Cornubia UPL chemical inferno.

Delivering an executive statement to the legislature, Economic Development, Tourism and Environmental Affairs MEC Ravi Pillay revealed that government officials recently served a tougher enforcement directive on UPL. However, lawyers acting for UPL had swiftly lodged an internal appeal objecting to the more stringent requirements to monitor and assess the impacts on human health and the environment.

Commenting on what he termed the “trail of toxic devastation for humans and nature in the north of Durban”, Sithembiso Mshengu (ANC) said he welcomed the government’s decision to lay criminal charges against a company that “chased profits with no regard to the regulations that govern the dangerous products that they manufacture and distribute”.

“This legislature must stand with the poor and marginalised and resist any form of environmental degradation in the name of producing economic opportunities. Humans and the environment cannot co-exist with polluters who exploit our unassuming communities and operate dangerous businesses that threaten future generations and our ecosystems. We call on the department to undertake an audit on all hazardous chemical companies that operate in the province.”

Subramoney Moodley (IFP) said it seemed clear that the company had not been properly authorised to operate the warehouse, and that the severity of the spillage could have been averted, had the right protocols been observed.

“We trust that a critical role will be played by our judicial bodies to take legal action,” said Subramoney, adding that the incident should be treated as a “catastrophe of national scale”.

In contrast to the strong criticism voiced by fellow legislators against UPL, Minority Front leader Shameen Thakur-Rajbansi adopted a distinctly curious position. “How can we impose a fine on this company in terms of administrative justice and in terms of the ‘polluter pays policy’, when actually the looters were responsible and should be apprehended?”

Many other factories in Durban had been set on fire during the unrest, also causing air pollution, whereas “UPL unfortunately happened to be next to water ecosystems”.

Insisting that the underlying fault should be laid at the doorstep of the government in failing to fill key environmental enforcement posts as well as the failure of police to control the July unrest, Thakur-Rajbansi “applauded” UPL for undertaking (mandatory) environmental rehabilitation measures.

The country was already facing a range of problems, including Covid-19 lockdown measures and internal security threats, so: “Let’s be fair to job creators and get our house in order rather than punish the already vulnerable business sector,” she suggested.

Thakur-Rajbansi’s position seemed to take little account of evidence that the warehouse was operating without environmental authorisation and other planning permissions designed to ward off the risk of toxic fallout from a natural disaster or major accident next to residential areas and sensitive environments.

UPL durban chemical inferno Dead fish in uMhlanga estuary after the UPL chemical spill on 12 July 2021. (Photo: Ben Carnie)

Heinz de Boer (DA) remarked that it might have been helpful if “some of the smaller opposition parties” had bothered to attend some of the public meetings and site inspections at UPL before coming to debate the challenges of regulating the chemical industry in the provincial legislature.

Nevertheless, he believed the UPL chemical disaster had exposed several shortcomings in the government’s ability to uphold environmental laws and regulations; its “complete lack of transparency” and a failure to inform communities about the risks they faced in protecting their health in the immediate aftermath of the UPL arson attack.

De Boer asserted that as much as it was an environmental and human disaster, the fire and explosion at UPL was also a “political disaster” that had been caused by factions within the ANC and by “one man — Jacob Zuma” and that perhaps the clean-up bill should be sent directly to the ANC.

MEC Pillay hit back at De Boer, accusing him of “playing politics”, but acknowledged that those who instigated the arson attack should face the consequences.

“But equally, the environmental laws are there to protect and mitigate against potential disasters — whether it’s a storm or whether it’s an earthquake. That’s why this particular facility should not have been located there next to environmentally sensitive areas and with potential impact on human health.

“I disagree with Hon Rajbansi because the law provides specifically for the polluter to pay… Shortcuts should not be taken when you are setting up in that space or for a warehouse of this nature.”

Outside the KZN legislature, the national Department of Forestry, Fisheries and Environment and other government departments have also raised the need for new measures to prevent future toxic disasters.

According to the preliminary findings of an investigation into the UPL inferno published in August, a multi-departmental government investigation has recommended that there should be “a baseline compliance profile assessment of the agrochemical storage and manufacturing sector”.

Based on the outcome of this assessment, there should also be a compliance and enforcement programme targeting the sector, if necessary.

“Given the range of authorisations required by the sector, the scope of the above assessment could also include a review of the protocols/processes within the different relevant departments/units with the aim of streamlining these processes and improving communication and coordination.”

Based on these evaluations, the government should consider the need to establish an interdepartmental rapid emergency response team to deal with certain categories of incidents.

“In order to ensure certainty in relation to which authority within government is best placed to lead an intergovernmental response to high-risk emergency incidents, an assessment should be undertaken of whether or not the environmental risk posed by the incident should be used as a guide to assign such a competence.”

Depending on the review of section 30 of the National Environmental Management Act, possible amendments to the legislation should be considered, along with a new panel of intergovernmental specialists to provide expert advice when dealing with these types of emergency responses.

Last, the government should also consider the feasibility of creating a mobile command centre that has the basic equipment to be used to assist in a government response to these types of incidents. OBP

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