In mid-July, South Africans had to fight for their constitutional democracy. As the dus settles, we are fighting for the openness of that democracy. The intent behind the 1996 Constitution was not only to establish democratic self-rule, but to ensure an ‘open and democratic’ society, based on the values of human dignity, equality, and freedom.
Openness is non-negotiable for the people of South Africa to enjoy their constitutional right to an environment ‘not harmful to health or well-being’, and for our socio-economic rights.
But openness is being trampled on in the handling of the chemical fire that broke out on 12 July 2021 at a warehouse owned by Mumbai-based chemicals multinational United Phosphorous Limited (UPL) in Cornubia, north of Durban. The building, which is irreparably damaged, is owned by Fortress Real Estate Investment Trust.
Residents and affected stakeholders have been denied essential information about chemicals and related by-products stored at the warehouse. As a result of the fire, and attempts to hose it down, these have escaped into airways and waterways, contaminating water, air, and soil. Since either looters or economic saboteurs set the factory alight, community complaints have flooded in:
‘We have a strong pungent smell and [are] inhaling this. My 2 [dogs] have vomited up white/grey substance for the past few days and my …[child] was very ill last night. We have all had sore throats and itchy eyes’.
‘People have had scratchy throats and raw feeling eyes’, ‘in our household we had one person with asthma which was exacerbated with greatly restricted breathing on Thursday and Friday nights and nausea and vomiting’.
‘We also had cats vomiting on Friday’. Nearby residents have expressed concern that ‘this deeply concerns us as these fumes, we believe will lead to health problems further down the line.’
The basis for these concerns lies in the nature of the ‘crop solution products’ UPL may have been storing at its warehouse. Amongst the 124 herbicides, 52 insecticides and 43 fungicide’s UPL touts as crop solution products, some contain paraquat, carbofuran, atrazine, cyanamide and chlorpyrifos, all of which are banned in the EU and numerous other countries. All of these substances are toxic or harmful to people, animals and the planet. These agents are known as human cardiorespiratory, neurological, gastro-intestinal and dermatological toxins. See for example, UPL’s product information sheet on ‘Paraquat SL’, ‘Carbofuran 10GR’, and the more widely-notorious Glyphosate products.
To date neither the company, the landlord nor eThekwini, KwaZulu-Natal or national authorities have released the full inventory of chemicals stored at the warehouse. Nor have they put out substantive information on the nature of the risks that underlie the closure of Durban’s beaches north of the uMgeni estuary. Belated warnings not to collect or consume the dead fish and birds, ‘wear double Covid-19-type surgical or soft cotton masks’ kept ‘slightly moist’ to trap particles and fumes, and use ‘extra virgin olive oil’ (UPL company statement, issued on 19 July 2021) are insufficient.
These measures do not honor the constitutional values of openness and environmental protection. It is urgent that society is informed about the toxicity and volumes of these products and the risks that they pose for humans and the environment.
In the public eye, UPL seems to be fudging and buck-passing its responsibility for the harm flowing from the fire. In statements to the media, it has blamed other fires in the vicinity and the possibility of ‘other sources of contamination’. The company has suggested that 90% of the chemicals were destroyed by the initial fireball, or that the precise cocktail of substances released can only be determined after tests.
It has cautioned against causing unnecessary public anxiety and claimed that the prerogative for notifying the community of risks rests with the authorities or the landlord.
UPL is responsible for the risk it created.
But has been the case in India, where UPL has also faced protests, the firm should be considered responsible. It should have notified everyone about the risk it created by manufacturing and/or storing extremely dangerous substances in a mixed-use, densely populated residential area.
South African law requires this. Section 30(3) of the National Environmental Management Act (NEMA), 1998 prescribes notification obligations when there is an ‘unexpected, sudden and uncontrolled release of a hazardous substance’ that may cause significant harm to the environment, human life or property from an incident like a fire or explosion.
When such an incident occurs, the owners or persons in control of hazardous substances should report it to authorities and to ‘all persons whose health may be affected by the incident’. NEMA specifically requires reporting on ‘the toxicity of substances or by-products released by the incident’, and ‘any steps that should be taken in order to avoid or minimise the effects of the incident on public health and the environment’. Failure to do so is a criminal offence.
Despite numerous requests, UPL has not supplied evidence that satisfies the prescripts of the section 30(3) notice.
Beyond emergency notification, NEMA also requires the responsible firm to take‘reasonable measures to contain and minimise the effects of the incident, undertake clean-up procedures, remedy the incident’s effects, and assess the immediate and long-term effects on the environment and public health’ Within fourteen days after the incident, a report must be submitted to the authorities to enable an initial evaluation.
Government cannot abrogate its risk regulation and oversight role.
The regulation of hazardous chemicals is a state responsibility. The lack of information provided and the government’s and company’s delayed responses require much more appropriate emergency preparedness and response plans. For example, the municipality’s failure to provide evacuation plans for eThekwini’s many hazardous industrial sites, most within close distance to residences, is a long-standing source of community grievance. This abrogation of duty is completely unacceptable.
In the event of uncertainty around risks, the precautionary principle applies. The precautionary principle is foundational in South African environmental law. The principle is that lack of full scientific certainty cannot be used to justify delayed action. A ‘risk-averse and cautious’ approach must be applied. Even if the firm and the government are unclear about what was actually released into the environment, the precautionary principle dictates erring on the side of caution.
Scientific independence is imperative.
In a statement released on its website on 19 July 2021, UPL reported on its consultations with toxicologist Dr Gerhard Verdoorn. The company gave Verdoorn a list of the products stored at the warehouse (still not in the public domain) and requested his guidance on the possible health implications posed by the release of such products into the environment.
Verdoorn reportedly found minimal risk of any long-term effects to the health of people exposed to the smoke from the warehouse, but cautioned that in the short-term dermal, eye and respiratory irritation could be experienced.
However, Verdoorn is also Operations and Stewardship Manager at Croplife South Africa. Croplife International is a well-known apologist and lobbyist for the interests of the multinational pesticide industry.
Verdoorn has also been at the centre of a recent controversy dealing with the regulation of scientists who safety-test pesticides. We therefore have strong reasons to doubt his independence. We also note that the company’s statement says nothing about the health implications of products released into waterways.
We cannot allow a multinational pesticide producer to dictate the terms of access to information in our country. It is the state’s duty to protect our constitutional rights and wellbeing, therefore as we reassert and claim the openness of our democracy we ask for government’s support in demanding:
1. The immediate release of the full inventory of chemicals stored at UPL’s Cornubia warehouse.
2. An independent scientific assessment of the health and ecological implications of the release of the chemicals stored at the warehouse into the environment.
3. Full disclosure on the part of UPL and the authorities of all reports relating to the incident.
4. Full disclosure of the zoning,all regulatory permissions and risk mitigation measures put in place for the warehouse.
5. UPL and other entities involved, including landlord Fortress Real Estate, compensate anyone who suffered damages as a result of the Cornubia chemical warehouse fire, and establish a monitoring project to assess longer-term health impacts.
6. UPL’s rehabilitation and remediation of the riverine and marine environment devastated by the chemical warehouse fire.
7. Provision of health services, at the company’s expense, for those believed to be acutely affected by the exposures, and those that may experience longer term health effects.
Tracy-Lynn Field, Claude Leon Foundation Chair in Earth Justice and Stewardship, Mandela Institute, Wits University.
Melissa Strydom, Attorney, PhD Candidate, Wits University
Rajen Naidoo, Professor and Head, Discipline of Occupational and Environmental Health, University of KwaZulu-Natal
Kira Erwin, Senior Researcher at the Urban Futures Centre at the Durban University of Technology
Rico Euripidou, Environmental Health Campaigner, groundWork Friends of the Earth SA.
Desmond D’Sa ,South Durban Community Environmental Alliance (SDCEA)
Patrick Bond, Professor, University of the Western Cape School of Government
Kamini Krishna, Property and Environmental Attorney, Durban
Individuals who would like to sign the Open Letter should please submit their names to [email protected]
* The opinions expressed in this Open Letter are those of the individuals concerned, and not necessarily the institutions at which they are based.
** The views expressed here are not necessarily those of Independent Media.