DURBAN - MINISTER of Forestry, Fisheries and Environmental Affairs Barbara Creecy said yesterday a criminal case had been opened in connection with the chemical spill, from the United Phosphorus Limited (UPL) warehouse in Cornubia, due to a fire during the July unrest.
Pesticide and agro-chemicals spilled into the Ohlanga River, uMhlanga Estuary and the sea as a result of the fire.
Creecy was speaking at the release of the joint preliminary investigation report into the compliance profile of UPL. The report was compiled by the department, along with the KZN Economic Development, Tourism and Environmental Affairs (Edtea) Department, the labour and agriculture departments, eThekwini Municipality, Ezemvelo KZN Wildlife and the Department of Water and Sanitation.
Creecy described the spill as “the most serious environmental catastrophe in recent times”. She said empirical evidence showed that an entire ecosystem – including the Ohlanga tributary, the uMhlanga estuary, the beaches and the coastal environment, not only in the vicinity of the UPL, but for kilometres to the north of the uMhlanga estuary mouth – had been seriously impacted.
The report released yesterday was the result of an investigation into the regulatory environment in which the UPL warehouse was required to operate, the environmental impact of the chemical spill and fire incident.
The report said that UPL’s operations involved the “unlawful storage of chemicals classified as a dangerous good” and that the volumes of chemicals stored in the warehouse significantly exceeded a volume of 500 cubic metres, which constituted a listed activity. In terms of the National Environmental Management Act (Nema), operations involving this activity should not commence without environmental authorisation.
The report found that UPL should have attained environmental authorisation from KZN Edtea prior to the storage of the chemicals. Creecy said the findings of the report indicated that UPL was not in possession of the requisite environmental authorisation prior to establishing its operations in Cornubia three months before the incident.
Also the report said the risk assessment process, in terms of the Occupational Health and Safety Act (OHSA) read with the major hazard installation (MHI) regulations, would have determined whether this facility constituted a hazard. It said it was reasonable to conclude based on the information available that the facility fell within the definition of an MHI and was subject to the legal requirements for such installations.
However, the report said that UPL had not obtained a critical risk assessment or planning permission from the municipality, in terms of the OHSA and the relevant municipal by-laws.
The minister said these assessments would have determined the emergency readiness of the facility in the face of a disaster such as a fire.
Regarding the criminal case, Creecy said a case had been opened at the Verulam police station last month. She said the team of investigators comprising environmental management inspectors had initiated the criminal investigation that would seek to determine criminal liability in relation to the harm that has been caused to the environment.
The report said the unlawful establishment and operation of the UPL facility had created a point source of pollution in that location, close to a river
system, a residential neighbourhood, a sensitive protected area and the coastal environment. “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,” it said.
It said Nema as well as the National Water Act recognises that any unlawful and intentional or negligent conduct which results in serious pollution or degradation of the environment and a water resource is considered to constitute criminal conduct.
“Further investigation is required to determine whether UPL, as a result of its failure to comply with specific legal requirements, either in terms of Nema or other relevant legislation, acted negligently by creating a point source of pollution which resulted in significant environmental impacts, despite the fact that the fire was started by other individuals,” said the report.
Creecy said the impact of the smoke on Blackburn and surrounding communities might not reflect immediately. However, she was satisfied that health practitioners were taking the incident seriously.
Regarding the use of beaches, the minister said those in the vicinity remained closed, and subsistence and recreational fishing, as well as the utilisation of any marine living resources in the area, remained prohibited.
UPL Responds
UPL said in a statement yesterday that it would in due course respond to allegations of non-compliance in the appropriate forums.
It said that for now it intended to get on with the clean-up and rehabilitation operation.
It said it had been fully committed to co-operation with all three spheres of government to help manage the after-effects of the violent attacks on its Cornubia warehouse, and was therefore deeply disappointed that Minister of Forestry and Fisheries and Environmental Affairs, Barbara Creecy, decided to release her department’s preliminary findings without any prior discussion with the company.
It said the preliminary report was only sent to UPL hours before its public release and it, therefore, had insufficient time to properly consider the report.
“What is nevertheless clear is that it fails to address what is at the heart of the issue – namely, that the fires, which led to the pollution, were caused by rioters involved in the civil unrest in KwaZulu-Natal at the time, and which the emergency services were unable to contain.
“UPL and many other businesses were left to fend for themselves in the face of unprecedented and unforeseeable levels of violence and criminality. This central fact seems to be conveniently ignored by Minister Creecy’s department.”
It said it did not admit any non-compliance with the law, as alleged in the preliminary report.
It added that very little had been said about its extraordinary efforts regarding the containment and clean-up of its products, its compliance with its National Environmental Management Act (Nema) obligations and the Nema Directives issued – all at considerable cost to it and in the most adverse circumstances possible.
THE MERCURY