Avoiding an environmental catastrophe

Recommendations have been made to prevent a repeat of the devastating chemical spill and fire incident following the warehouse attack in Cornubia in July. The preliminary Compliance Profile Report indicates both a lack of critical risk assessment or planning permissions, and inadequate Environmental Authorisations.

The Joint Preliminary Investigation into the Compliance Profile of UPL South Africa (Pty) Limited in Cornubia, north of Durban follows 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. Minister of Forestry, Fisheries and Environment Barbara Creecy said that:

“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. “[1]

In brief, the findings indicate that UPL did not have the requisite Environmental Authorisation from the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs. Nor did they have the 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. If they had, the facility would probably have been defined as a Major Hazard Institution and with it the emergency readiness capability of the facility to deal with a disaster such as a fire would have been addressed. [2]

Findings of responsibility and liability aside, in an attempt to prevent similar environmental disasters, the report recommends an evaluation of the response of the authorities to the incident, with the aim of enhancing their ability to respond to similar incidents in the future.

Recommendations and way forward include:[3]

• Baseline compliance profile assessment of the agrochemical storage and manufacturing sector – needs to be identified for a national compliance and/or enforcement programme targeting the sector.
• Given the range of authorisations required by the sector, review the protocols/processes within the different relevant departments/units with the aim of streamlining these processes and improving communication and co-ordination.
• Based on the evaluation of the authorities’ response to this incident, determine the need to establish an interdepartmental rapid emergency response team to deal with a certain category of incidents.
• Assessment of whether or not the environmental risk posed by the incident should be used as a guide to assign lead competence – review of Section 30 of the NEMA.
• The establishment of a panel of intergovernmental specialists which could be called upon to provide expert advice.
• The feasibility of creating a mobile command centre which has the basic equipment which can be used to assist in a government response to these types of incidents should be considered.
• Baseline compliance profile of the agrochemical manufacturing sector to commence early in 2022 – not a traditional compliance assessment but will evaluate efficacy of the regulatory loop/connections and make recommendations to improve on this.
• Evaluation of the response by the authorities with the view to ensure that all relevant authorities subscribe to the same incident management procedures – None subscribed to within environmental regulation.
• MINTECH Working Group 4 to begin a review of the guidelines on the administration of NEMA section 30 incidents (2019) and legislation[4] to determine the need to make revisions in relation to the mandated authority to co-ordinate an intergovernmental response to high risk emergency incidents.
• Engage Environmental Assessment Practitioners Association of South Africa to investigate the creation of a mechanism whereby specialists are selected and appointed by government but for which the polluter pays – eliminate bias (Polluter Pays Principle).
• Identify capability shortfalls within the toxicology and chemical scientific disciplines and identify capable external individuals to serve on a panel of experts.

As the clean-up and remediation operation continue and the environment begins to recover, so too will our ability to prevent and to properly address similar environmental disasters, but only if we heed the lessons learnt and the correct recommendations are implemented.

[1]https://www.gov.za/speeches/minister-barbara-creecy-release-upl-profile-report
[2]https://www.environment.gov.za/sites/default/files/docs/compliance_profile_report.pdf
[3] Compliance Profile Report at 17 and 18
[4] See Guidelines on the Administration of Incidents https://www.environment.gov.za/guidelines_administrationofincidents.pdf