UPL spill: Durban chemical company had no environmental authorisation to operate plant, report finds

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Google Maps image showing the flow (yellow) and extent (blue) of the contamination (Google Maps/Presentation to portfolio committee on environment, forestry, and fisheries)
Google Maps image showing the flow (yellow) and extent (blue) of the contamination (Google Maps/Presentation to portfolio committee on environment, forestry, and fisheries)
  • A preliminary investigation has found United Phosphorus Limited (UPL) was not properly authorised to operate its Cornubia chemical factory.
  • UPL did not have environmental authorisation from the KZN government and planning permission from the eThekwini Municipality.
  • UPL said it did not admit non-compliance with the law and was blindsided by the release of the preliminary findings.

United Phosphorus Limited (UPL) had no environmental authorisation to operate its Cornubia chemical factory, nor did it obtain risk assessment and planning permissions as required by environmental and municipal by-laws, a preliminary report has found.

Forestry, Fisheries and Environment Minister Barbara Creecy released the report on the Durban environmental disaster probe on Sunday.

The UPL factory, which stored various types of chemicals, was targeted during the unrest in July.

Water used by firefighters to douse the flames contained chemicals flowed through nearby communities, seeping into the soil, rivers and polluting a large stretch of the Durban North ecosystem and its beaches.

The contamination resulted in the closure of beaches on the North Coast.

Creecy said the chemical spill and fire caused "the most serious environmental catastrophe in recent times".

READ | Concern over long-term health impact of chemical spill at Durban factory

"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 the UPL, but for several kilometres to the north of the uMhlanga estuary mouth, has been seriously impacted and may take several years to recover from this incident.

"In the days following the fire, the air quality in the immediate facility was also affected."

She added environmental authorisation should have been obtained by UPL from the provincial tourism and environmental affairs department.

"In addition, UPL had not obtained a critical risk assessment or planning permissions from the eThekwini Metropolitan Municipality, in terms of the Occupational Health and Safety Act (OHSA) and the relevant municipal by-laws.

"Had the UPL undertaken this process, it would in all probability have been defined as a major hazard institution considering the significant volumes and nature of the chemicals stored at this particular location.

"These assessments would have determined the emergency readiness of the facility in the face of a disaster such as a fire."

UPL said it was "deeply disappointed" Creecy decided to release the preliminary findings without any prior discussion with it.

READ | UPL disaster: 'It smelled like Guy Fawkes' - residents kept in dark about dangers on their doorstep

It added the report was only sent to it late on Saturday night and it would respond in due course to the allegations of non-compliance.

"UPL does not admit any non-compliance with the law, as alleged in the preliminary report."

It said it was also "evident" little has been said about UPL's efforts at containing and cleaning up lost products, its compliance with its National Environmental Management Act (NEMA) obligations and the NEMA Directives issued "all at considerable cost to UPL and in the most adverse circumstances possible".

UPL added Creecy failed to consider the fires, which led to the pollution, were caused by rioters.

"UPL along with 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."

Creecy said criminal investigations had been initiated by an independent team of investigators from the environmental management inspectorate.

A criminal case has since been opened with the Verulam police.

She added she was not pronouncing on the innocence or guilt of UPL.

"These findings will be made by a court of law once the NDPP [National Directorate of Public Prosecution] makes a decision to prosecute this matter."

Among the recommendations, the report proposed a compliance profile be identified for the chemical storage and manufacturing sectors to assess the need for a national compliance and/or enforcement programme.

Based on the evaluation of the authorities' response to the incident, it was also recommended to determine the need to establish an interdepartmental rapid emergency response team to deal with a certain category of incidents.

READ | UPL disaster: 'It smelled like Guy Fawkes' - residents kept in dark about UPL experts declare Durban beaches safe to reopen after testsdangers on their doorstep

The report recommended looking at the feasibility of creating a mobile command centre which had basic equipment which could be used to assist in the government's response to these types of incidents.

Creecy said clean-up teams were applying various measures to contain the spillage, including the physical removal of sediment from the system.

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

The affected areas remained a "emergency situation," she added.

"Accordingly, I will ensure that the national department continues to provide critical specialist support to the Joint Operational Centre. The national Green Scorpions will also continue to lead the criminal investigation that was initiated and work closely with the other entities involved in this investigation. "The danger has not yet passed. But in time, with enough remedial work and attention, we hope the environment will recover and those responsible for this incident, directly and indirectly, will have to own up and take responsibility for their actions."

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