Cornubia catastrophic chemical spill – UPL waste…

Many readers would have seen, or had direct experience of, the devastating environmental damage caused by the chemical fire at the UPL plant began during the Durban riots on the night of July 12, 2021. The fire sent a toxic plume over surrounding communities for several days. Runoff water from firefighting polluted the nearby river and flowed into the Ohlanga estuary, causing significant fish kills.

When the toxins entered the oceans, beaches along the coastline were closed for nearly four months. All fishing and swimming was prohibited. Many fishermen lost their livelihoods and struggled to feed their families during this time. Fishing and the exploitation of marine resources within 50 km north and south of the mouth of the Ohlanga River remain prohibited, prolonging the hardship of subsistence fishermen.

The Cornubia UPL warehouse housed over 700 different types of chemicals used in large-scale agriculture. Many of these stored chemicals are considered toxic to people, plants, fish and animals. Some are considered so dangerous that they are banned in Europe and other countries, and many are subject to trade restrictions under the Rotterdam Convention. The convention does not specifically ban chemicals – rather it establishes a prior informed consent procedure to ensure that restricted hazardous chemicals are not exported to countries that do not wish to receive them.

Chemicals released into the environment have serious consequences for human health. Without a thorough public health study that tracks these longer-term health outcomes, the true cost of this disaster remains unknown and will be borne by the public.

How and why these toxins were stored in a facility that was not designated as a major hazard facility, and why UPL failed to undertake a proper risk assessment are questions that remain unanswered, nearly 10 months later. the fire. This legal requirement is in place to specifically assess the risk of events such as spills and contamination. This is especially important when a facility is near waterways, informal housing, and a zoned education area (all things prior to the construction of the warehouse).

Make the polluter responsible

Leaving these important questions aside for now, the case of the UPL raises critical considerations for all South Africans. We all generally agree that we have good legislation in the National Environmental Management Act (Nema), which clearly provides that the authorities must hold the polluter responsible for the damage caused. However, it is tricky to implement.

While the UPL has paid for the obvious environmental cleanups and monitoring of toxicity levels in the region, and frequently bemoans people who unfairly point the finger at them, it has a rather narrow view of liability. This large multinational is, to this day, not yet ready to take responsibility for the damage caused to livelihoods and human health by storing these chemicals without proper safety measures and without legal compliance.

It is of particular concern that the polluter does not currently account for possible long-term effects on human health due to exposure, future levels of soil and water toxicity, or provide explanations for how toxic materials are currently being taken to landfills at KwaDukuza in KwaZulu NatalHolfontein in Gauteng and elsewhere is being treated to ensure no further damage is caused.

The UPL’s reluctance to accept responsibility by refusing to acknowledge the establishment of MSF by Ravi Pillaythe KwaZulu-Natal MEC for Economic Development, Tourism and Environmental Affairs. The MSF was created to recognize the various stakeholders and their right to be consulted on issues that concern them. Stakeholders, in particular the communities directly affected, have the right to be involved and to request officially recognized structures to ensure access to information and consultation.

Dumpsters containing hazardous debris lined up next to the charred remains of the UPL Chemical warehouse. (Photo: Shiraz Mohammad)

After all, UPL hadn’t even made public the list of chemicals released in the fire. It is only through a document leaked by amaBhungane journalists on August 18, 2021 that residents discovered what they had inhaled during those days while sheltering indoors and blocking windows and doors from the noxious and foul smell.

Currently, MSF operates under a Draft Terms of Reference (TOR) with a “committee” or core stakeholder group of 26 people who represent various affected communities and interested parties. The most important feature of the creation of the MSF is the recognition by the MEC and the Minister that stakeholders have the right to be informed in a timely manner and to participate in decision-making.

The Terms of Reference document MEC’s ​​and the Minister’s commitment to transparency and accountability. The UPL did not participate in any MSF meetings and publicly declared its reluctance to recognize MSF.

It is important to note that MSF has not been given any powers that would otherwise be vested in the authorities. It also did not receive funding to operate. This makes it difficult to operate, rent meeting venues, hire specialists to help interpret reports and disseminate information to the general public, and meet transportation and data costs for team members who live in the informal settlement of Blackburn Village.

Despite the lack of funds, the group of committed volunteers that make up MSF worked hard to follow up on the bi-weekly reports from the specialist consultants and raised a long list of issues related to the reports. They also made detailed comments on why they do not support the UPL’s proposal to discharge waste from the pollution control dam (PCD) to the sea via the southern outfall and to divert contaminated water from the PCD and directly in the estuary.

MSF has commented extensively on the current proposal to allow the dilution and discharge of the toxic contents of PCD into the estuary, noting its strong opposition to it.

MSF has long advocated for an on-site treatment facility to treat wastewater in an environmentally sustainable way.

On February 23, 2022, members of MSF carried out an inspection of the site with the authorities and specialized consultants contracted by the UPL. MSF raised concerns regarding compliance with Nema Section 30A, accuracy and interpretation of soil toxicity and air quality data, long-term health impacts, PCD capacity and the KwaDukuza municipal landfill operated by Dolphin Coast Landfill Management, and the potential local impacts emanating from the overloaded landfill.

Additionally, some of the land that was contaminated by the chemical spill falls into areas zoned for future social housing. MSF asked if there was a plan to ensure that these families, many of whom will be cultivating vegetable gardens, would not be given toxic land to live on?

put it to the test

What does responsibility mean according to Nema’s polluter-pays principle? The UPL case puts this to the test.

Currently, the lack of recognition of MSF by the UPL means that it is not obliged to contribute to the cost of MSF to allow it to fulfill its mandate in a meaningful way. Funds must be available to enable MSF to operate administratively and to seek expert peer review of technical reports.

Without this, we, MSF, are entirely dependent on the data and interpretation provided by specialists paid by UPL, and when UPL chooses to make it public. This puts far too much control in the hands of the polluter. The UPL’s refusal to recognize the MSF means that the MSF has no direct engagement with the UPL and its specialists to challenge and seek clarification of the data they publish.

In fact, consultants’ hands are tied by non-disclosure agreements that they were required to sign. Does accountability require meaningful participation where stakeholder concerns are respected and acknowledged, and can they contribute to decision-making? UPL has a chance to take this responsibility seriously.

MSF urges them to do so quickly, to ensure that the public’s right to consultation on matters that have a direct impact on their health, environment and livelihoods is respected.

Signed by the candidates for nomination to the steering committee of the UPL Multi-Stakeholder Forum:

Francine Hattingh, Durban North Air Quality and Health Advocacy Group; Kamini Krishna, UPL Civil Society Action Group; Desmond D’Sa, South Durban Community Environmental Alliance; Bongani Mthembu, South Durban Community Environmental Alliance; Allimuthu Perumal, activist; Rico Euripidou; Ground work; Zamir Harichand; Phoenix Subsistence Fisheries Forum; Cameron Service, Litterboom; Kirsten Youens; Youens Lawyers specializing in environmental law, representing the Sibaya Master Management Association NPC, the Sibaya Conservation Trust, the Umhlanga Urban Improvement Project NPC, the Umhlanga Promenade Urban Improvement Precinct NPC and the Cornubia Industrial and Business Estate; Sihle Miya, Urban Management Consultant, representing Cornubia Industrial and Commercial Estate, Umhlanga Urban Improvement Project, Umhlanga Promenade Urban Improvement District, Sibaya Master Management Association and Sibaya Conservancy Trust; Dr. Ryan Daly, marine biologist; Pamela Le Noury, marine biologist and responsible for sustainable development; Dr Sarah White-Reynolds, Environmental Engineer at Utilities Consulting Services (Pty) Ltd; Janet Simpkins, Adopt a River Eco Solutions; John Aritho, Chairman of the Chamber of Business Tourism Committee and General Manager of the Beverly Hills Hotel; Jenny Duvenage, Wessa Coastwatch; Steve Woodhall, Society of Lepidopterists; Colin Levin, Living Oceans Conservation Trust; Justin Newcombe-Bond, Senior Landscape and Irrigation Manager, Ridge Management Association (Pty) Ltd; Dr Melize de Villiers, GP, Health Matters Ballito; Tracey Simkiss, Environmental Consultant – Umdloti Protection; Terry Rens, Environmental Consultant – Umdloti Protection; René Royal, environmental consultant – Umdloti Protection; Rev Andrew Manning, Creation Care Network of the Anglican Church, Anglican Church of Southern Africa Environmental Network and KZN Marine Waste Network (South Coast); and Steve Cohen, Durbanites Against Plastic Pollution.

Note: A subsistence fisher representative has been appointed. No subsistence farmers or small/micro enterprise communities were named. It is recommended that the committee find ways to include these groups and co-opt representatives onto the committee. DM