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Minister Barbara Creecy on release of the UPL Compliance Profile report

3 Oct 2021

KwaZulu-Natal MEC for Economic Development, Tourism and Environmental Affairs, Mr Ravi Pillay,
Councillor Diane Hoorzuk from the Ethekwini Municipality

Good Morning Ladies and Gentlemen

I am today releasing the Joint Preliminary Investigation into the Compliance Profile of UPL South Africa (Pty) Limited in Cornubia, north of Durban.  

The report is the result of an investigation by a multi-disciplinary team into the regulatory environment in which the UPL warehouse was required to operate, and the environmental impact of the chemical spill and fire incident that has caused  the most serious environmental  catastrophe in recent times.  

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.

Beaches along this stretch of the KwaZulu-Natal north coast remain closed, and subsistence and recreational fishing, as well as the utilisation of any marine living resources in the area remains prohibited.  The impact on ecotourism in Umhlanga, and the reserve, will be felt for a considerable period of time. 

The release of the Compliance Profile Report honours an undertaking I made  in the National Assembly  that when completed,  the findings of the investigation, and its recommendations, will be made public.

The Compliance Profile Report, which will be summarized for you today, contains a factual assessment of the seven different government authorities relating to all the licenses, permits and authorisations that UPL was required to have, in order to lawfully conduct its operations at Cornubia compared with those that UPL held at the time of the fire. 

It  evaluates the legal provisions relating to the duty to eliminate or limit further damage to the environment and the sanctions which such a duty may attract, bearing in mind the liability of those individuals whose actions may have caused and / or further contributed to the widespread damage. 

The findings indicate that UPL was not in possession of the requisite Environmental Authorisation prior to establishing its operations in Cornubia three months before the incident.  The Authorisation should have been obtained from the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs.

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.

When  I spoke in the  National Assembly, I  made it clear that if it is established that UPL operated unlawfully, the appropriate steps will  be initiated.  Accordingly a criminal case has been opened in September at Verulam Police Station. 

An independent team of investigators comprising Environmental Management Inspectors from both the national and provincial departments have initiated a criminal investigation. This investigation is being undertaken in line with the Criminal Procedure Act and involves the collection of evidence, including sampling of, amongst others, sand, water, fish and plants, to determine criminal liability in relation to the harm that has been caused to the environment. The probe will also take into account the liability of  other role-players that may have been involved in this matter.

Of course at this stage its important to say that its not our role to make findings of guilt or innocence against UPL.  These findings will be made by a court of law once the NDPP makes a decision to prosecute this matter.

The recommendations are not limited to this particular incident but also suggest pro proactive measures to strengthen the regulation of this sector.

This includes a recommendation for a baseline compliance profile of the entire agrochemical manufacturing sector and the inclusion of this sector into the national environmental compliance and enforcement activities. I will in the near future be meeting with my counterpart in the Department of Rural Development and Agriculture to discuss the implications of this recommendation for the sector she leads. 

The report also recommends an evaluation of the response of the authorities to the incident, with the aim of enhancing our capabilities to respond to similar incidents in the future. Ideas currently on the table include the establishment of an interdepartmental rapid emergency response team to deal with a certain category of incidents, and the establishment of a panel of intergovernmental specialists. 

Ladies and Gentlemen,

It is important to note upfront that the environmental rights enshrined in our Constitution are  people centred.  By implication the response by the authorities in this particular situation was motivated by the need to give effect to this inherent right. 

Given the scale of the incident, and the numerous regulatory authorities involved, government focused on three priority areas. The first and most immediate was to ensure that further environmental and health risks were contained; the second was to oversee and guide the assessment, clean-up and remediation process and the third priority has been to investigate the incident within the ambit of the regulatory environment applicable to such a facility. 

Yesterday I spent over four hours touring the incident site and being briefed on the extensive clean-up and remediation operation which is in process. This process is guided by specialists from different levels of government, and others employed by UPL itself . This team has worked together to isolate the contamination in the tributary and are apply a range of initiatives, contain the problem, including the physical removal of sediments from the system. So far 13 000 tonnes of contaminated solids and 23.4 million litres of contaminated liquids have been professionally removed from the UPL site and the environment below it.

The further studies  are being undertaken to guide an integrated remediation and implementation plan to target all affected environmental media in the longer term. 

The threat to human health remains an important concern for government.  In order to ensure long-term monitoring of the affected communities the authorities requested UPL to place a mobile clinic in the affected communities on a semi-permanent basis and to extend the human health risk assessment to include biological monitoring of the affected community.

To ensure that affected communities are fully briefed on all developments, we have developed of a draft terms of reference, to establish the multi-stakeholder forum in line with the recommendation of the Portfolio Committee during its visit to the site in August.

This forum will ensure meaningful engagement between authorities and the public, and act as a conduit for the dissemination of information to communities affected by this incident.

In conclusion I would like to point out that we remain in an “emergency situation”  in this area as a result of the fire event and spill. 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 to, and take responsibility for, their actions.

I thank You

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