ATC210824: Report of the Portfolio Committee on Environment, Forestry and Fisheries on its Oversight visit to Kwazulu Natal on 11 - 12 August 2021, Dated the 24th of August 2021

Forestry, Fisheries and the Environment

                                                                                                             

           

REPORT OF THE PORTFOLIO COMMITTEE ON ENVIRONMENT, FORESTRY AND FISHERIES ON ITS OVERSIGHT VISIT TO KWAZULU NATAL ON 11 - 12 AUGUST 2021, DATED THE 24TH OF AUGUST 2021.
 

The Portfolio Committee on Environment, Forestry and Fisheries (hereinafter, the

Committee), having conducted an oversight visit to KwaZulu-Natal Province, from 11- 12 August 2021, reports as follows:

 

1.INTRODUCTION

On 11 – 12 August 2021, the Portfolio Committee on Environment, Forestry and Fisheries (the Committee) undertook an oversight visit to the province of KwaZulu -Natal. The oversight visit was informed by provisions of section 56 and section 24 of the Constitution. Section 56 of the Constitution provides that “The National Assembly or any of its committees may - (a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; (b) require any person or institution to report to it; and (c) receive petitions, representations or submissions from any interested persons or institutions.” Section 24 of the Constitution which provides everyone with rights “to an environment that is not harmful to their health or wellbeing” was what also compelled the Committee to undertake the oversight visit to the identified areas.

 

1.2. TERMS OF REFERENCE

The main objective of the visit was to conduct oversight following the fire incident at the United Phosphorous Limited (UPL) on the 12 of July 2021, leading to the pollution of air, rivers and sea in the Cornubia and GreaterDurban areas. 

 

The first day of the visit (the 11th of August 2021) comprised of a hearing with multiple stakeholders and was held at the Natal Sharks Board Head Offices in Umhlanga, Durban. The stakeholders included the National Department of Forestry, Fisheries and the Environment (DFFE), the Provincial Department of Economic Development, Tourism and Environmental Affairs (EDTEA), EThekwini Municipality, UPL, the environmental team of experts appointed by UPL, the national and provincial departments of health and labour,NGOs and affected communities. On the day, the Committee also visited the burnt-down UPL warehouse in the Cornubia area. 

On the second and last day of the visit, the Committee met with the leadership of the DCLM landfill site in KwaDukuza, and toured the company’s facilities. 

 

1.3. Composition of the Delegation

The Portfolio Committee delegation on the oversight visit to KZN was composed of the following members of Parliament (MPs):

Hon Mr Xasa, FD: Chairperson, (MP), African National Congress, ANC;

Hon Mr Modise, PMP, (MP), ANC;

Hon Ms Mchunu, TBV, (MP), ANC;

Hon Ms Mbatha, SGN, (MP), ANC;

Hon Ms Gantsho, N, (MP), ANC;

Hon Ms Phillips, C, (MP), Democratic Alliance, DA;

Hon Ms Weber AMM, (MP), Democratic Alliance, DA;

Hon Mr Paulsen, MN, (MP), Economic Freedom Fighters, EFF; and

Hon Mr Singh N (MP), Inkatha Freedom Party, IFP.

 

Support Staff

Mr PP Mbele, Committee Secretary;

Mr M Erasmus, Committee Assistant 

Mr Nhlanhla Ginindza, Researcher

 

2.BACKGROUND AND CONTEXT 

The United Phosphorus Limited is a company founded in India and has operations in South Africa. It producesmany pesticide and agro-chemicalsproducts that are mostly used in the agricultural sector. The warehouse started burning on 12 July 2021 and resulted in the pollution of air, soil, rivers and part of the coastline in Durban. The fire generated clouds of highly toxic chemical fumes and dust that spread for more than 10 days. The chemicals flowed to a local river system and several beaches were closed off after thousands of fish were poisoned by contaminated water.

 

The affected warehouse is located in special economic zone. There were concerns that no “specific” Integrated Environmental Assessment (EIA) conducted on the company’s warehouse and potential pollution for the new UPL facility in Durban. Only EIA was done for the entire Greater Cornubia mixeduse development project. This project was designated and gazetted as a special human settlements Strategic Integrated Project (SIP No.24) by the Presidential Infrastructure Coordinating Commission.

 

An official from the City of eThekwini told the media at a briefing on the 23rd of July 2021, that he was not aware of any application for a Major Hazardous Installation Permit lodged by UPL or the landowners. At that stage it was indicated that there was also no Scheduled Trade Permit granted for the facility, as per the requirements of the City of eThekwini by-laws, which regulate air emissions and pollution from potentially hazardous warehouses or production facilities. The status of the regulatory environment as regards to the establishment of the warehouse and its contents is currently under investigation by the various regulatory authorities at local, provincial and national level.

 

3. INTERACTIONS WITH STAKEHOLDERS 

The Committee interacted with the stakeholders in the order outlined below: 

 

3.1The metro, provincial and national departments

The Joint Operations Committee (JOC) informed the Committee that eThekwini Fire Department received a fire incident notification on the evening of the 12th of July 2021. Initially, Fire Department could not respond due to the sheer scale of the unrest in the province, which resulted in damages to approximately 200 buildings. The Fire Department was escorted to the incident by the South African Police Service.

 

The main water supply to UPL was damaged during the unrest and affected the function of the sprinkler system in the warehouse. Eventually, the eThekwini Fire Department was able to attend to the incident from approximately mid-morning on the 13th of July 2021 when the fire was already at its peak. The contents of the warehouse were unknown at that stage but the fire was attended to by emergency personnel and were already in the waterway, Umhlanga tributary and estuary.

 

During the initial visits and site inspections undertaken by the EDTEA and EKZN

Wildlife on the 16th of July 2021, the following observations were made: 

• There were difficulties in extinguishing the fire;
• There was discolouration of runoff storm water into tributary (Mhlanga) and then the Umhlanga estuary;
• Fish kills were observed and reported to the DFFE and EKZN Ezemvelo Field

 

Rangers (15th of July 2021). A strong, pungent odour was also present on-site;

• A significant number of dead fish observed at the mouth of the Umhlanga River and;
• Two chemical spill companies were working on-site, including setting up booms to contain the runoff from entering the river.

The MEC and Head of Department also visited the site on the 17th of July 2021. This was followed by the formalisation of a government response on the 17th of July 2021, andthe establishment of a Joint Operational Centre. On the 20th of July 2021, the Provincial Department requested specialist assistance from DFFE and a specialist team of 6 officials was sent to the province on the 22nd of July. 

 

A multi-specialist site visit was undertaken by the JOC on the 22nd of July 2021. The departments reported that the following observations were made then:

• Fire Department: Significant progress had been made in extinguishing the fire. The work of firefighters was negatively affected by the fact that the damaged structure was not very safe;
• Estuarine, Marine and Coastal: Dead fish were observed at the lagoon and estuary. It was recommended that the estuary mouth be allowed to close and open naturally. They recommended that the beaches be closed to the public;
• Aquatic and Freshwater: The stream was still highly polluted. Some contaminants from the facility were still reaching the stream. Dead freshwater creatures were observed;
• Air Quality and Environmental Health: Risk of exposure due to continuous smouldering; and
• Community Awareness: Notice Boards were observed, advising the community not to use the water from Umhlanga River. Community members told officials that they were aware of the warning and also confirmed that they did have access to potable water.

Since the 22 July, frequent site visits have been undertaken to monitor the situation on the ground.

 

 

 

At the briefing meeting to the Portfolio Committee on 11 August 2021, a joint presentation was made by DFFE, the Provincial Department and the City of eThekwini. The environmental impacts were noted in the following areas:

• Exposure to airborne toxic chemicals;
• Deposition of pollutants
• Water (Freshwater and groundwater); and
• The Marine and Estuary.

The relevant departments developed a co-ordinated response plan to mitigate further risk and ensure remediation and rehabilitation. This included efforts in the area of:

• Air Qualitywith Airshed conducting air dispersion modelling. The modelling results were delayed by the challenge of obtaining weather data. With regards
• Fresh Water, efforts included the temporary stream diversion to remove contaminated sediments for treatment and disposal. UPL was issued with a Verbal Directive in terms of Section 20 of the National Water Act by DWS, and a Verbal Directive in terms of Section 30 of the National Environmental Management Act by the EDTEA;
• A media and communications plan, and ensure patrols by officials, which would include the necessary warnings to the public; and
• Oceans and coast which will begin with the next sampling round, including the sampling of biota, will be informed by results of the water and sediment sample analysis. Drone imagery was being undertaken for the estuarine area, with approval provided by EKZN Wildlife for the Umhlanga Nature Reserve. 

 

The report by the departments also outlined the roles of each of the authorities involved in the process, the current assessments and reports in progress and a list of specialists from government authorities to UPL.  It is clear that due to the scale of the incident and the impacts on multiple environmental media as well as human health, numerous departments are required to co-ordinate activities in line with their roles and responsibilities highlighted below:

• KwaZulu-Natal Department: Economic Development, Tourism and Environmental Affairs - authority leading the integrated response and chairing the Joint Operations Committee (JOC); leading on compliance and enforcement action under NEMA (including issuing directives) and co-ordinating the engagement with media and communications
• eThekwini Metropolitan Municipality - Fire Department – first responders; Air Quality and Health Risk Assessment; Environmental Health response; decision makers in terms of beach closure and opening; engagement with media and community engagement
• Ezemvelo KZN Wildlife - conservation authority - management of estuary and expert advice in terms of long term management objectives for the estuary
• Department of Forestry, Fisheries and the Environment – specialist support – Wetlands (aquatics), Health Risk (Epidemiology), Waste, Oceans and Coast; Hazardous Waste Management
• Department of Water Affairs - Water management and approval of remediation undertakings within the freshwater system
• Department of Agriculture (Province) - advice in terms of regulatory approvals; list of chemicals – international import/ exports
• Department of Labour - Occupational Health and Safety (including Major Hazard Installation Regulations)
• Department of Health - Hazardous Substances Act; Acute and Chronic Exposure advice; Qualitative Health Analysis; “Door to door” health surveys and collaboration with private clinicians.

It was reported that the joint government task team would continue to oversee the government’s response, with KZN EDTEA leading the initiative. All efforts were currently directed at environmental remediation and eliminating any human health impacts. The EDTEA would continue to engage NGO’s and communities affected by this incident, whilst the Joint Investigative Task Team would complete its preliminary

report within one month and provide preliminary recommendations about the regulatory environment.

 

The government specialist team would continually support the KZN department in reviewing and analyzing the findings and recommendations from UPL specialist service providers. The municipality would continue taking the lead on the air quality, health risk assessment, environmental health response, and community engagement, and the DFFE Compliance & Enforcement would support KZN concerning enforcement actions when and where required. 

 

3.2 United Phosphorous Limited 

The UPL reported that they are a global leader in sustainable agricultural solutions, with a sales presence in 138 countries and USD5 billion in revenue. In South Africa, they are suppliers to the farming community across all major crops in all provinces, with approximately 18-20% market share. The company has achieved a USD 99.7 million revenue since setting up shop in the country. It has over 300 full-time employees and supports distributors that employ another 700 employees and agents. 

 

Mr Jan Botha, the company’s Chief Executive Officer in South Africa, reported that the Cornubia Warehouse was a brand new, state-of-the-art facility that the company occupied on the 1st of April 2021. The facility had CCTV camera coverage installed inside and outside, however, the footage was burnt. They believed that its fire and containment systems were more than adequate for reasonably foreseeable risks but could not withstand this type of ‘arson’, coupled with rioting and unrest. UPL had leased an appropriately zoned 14000 square metre warehouse from Fortress (Capita Propfund and Lussindale Investments), which involved no manufacturing of any kind. It stored 440 agricultural products (including different pack sizes of identical products) and 900 packaging materials and labels items. 

 

The company reported that the agricultural products were primarily water-based, were all safely contained and packaged with little to low fire risk. They also claimed that the facility was equipped with the necessary infrastructure to manage incidents of the kind reasonably foreseen.

 

Through its SA CEO, the company further reported the incident on the evening of the 12th of July, 2021. They believed it to be a carefully orchestrated break-in, looting and a multiple-point fire. Continuing unrest, safety considerations and resource constraints delayed immediate fire response and containment efforts. The fire had burnt for some days due to the collapse of the warehouse roof. 

 

The report also aired the company’s views on arson, rioting and civil unrest being significant business inhibitors confidence, which were particularly unfortunate in an economic environment in need of foreign investment. The company believed that despite these challenges, its products are suited to South African requirements and that it has a positive role to play in the country’s food production chain.

 

The CEO reported that UPL’s first priority was containment and clean-up to the satisfaction of the relevant authorities and best practice. UPL would assess its physical needs, replace the destroyed products and reinstate its operations on-site or elsewhere. The company had also assembled a team of excellent specialists and advisors and would engage all the affected communities to understand and attend to their concerns.

 

3.3. UPL Environmental Team

 

 

 

 

 

 

 

3.4. Interactions with representatives of the affected communities 

The Committee also took the opportunity to engage the representatives of the communities affected by the events on 12 and 13 July, as reported herein. These ranged from the ward councillors of the areas, concerned residents and non-governmental organisations that operate in these communities. The issues raised by these stakeholders both orally and written included the following:

• There had been a lack of communication from the government and UPL with the affected communities, and no consultations had been done since the fateful day in July;
• In the previous explosion from Engen, the Committee instructed them to provide reports, and the company has not done so in the past eight months. They were concerned UPL would do the same;
• Concerns were raised by the exclusion of the representatives of communities and NGOs from the JOC, even though they represent the very people who bore the brunt of the events of the reported period;
• UPL had not made any visible efforts to show empathy for its employees and surrounding communities, with the human health impact of the events not assessed nor communicated. The representatives believed that the latter would have a devastating effect on the lives of communities in the long term. A medical team should have been put together from the beginning to attend to the impact of the incident on human life and mitigate other risks;
• There were further concerns that there was general secrecy by the company (UPL), on the actual contents of the chemicals that were stored in the Cornubia warehouse;
• There should be adequate compensation by the company, for all people who will be found to have been adversely affected by the incident;
• There was a plea that Parliament ensures that all the outstanding and pending investigation reports by the various authorities on the matter be shared with all, including community representatives and NGOs;
• The Committee also heard of the devastating impact the incident had left on the tourism sector in the surrounding areas;
• Reports of challenges with municipal competence on air pollution management were also heard;
• Residents from around the warehouse reported respiratory distress that they suffered on the days of the smoke, some of which are worried about long-term effects that are yet to be discovered. The children could be the worst affected because they were playing outside while the fires were bellowing.
• The contaminated tributary can no longer support the irrigation of sugar cane farms and vegetable gardens;
• The Blackburn community did not have a clinic where they could be assessed and report medical complaints and did not know where to report. The mobile clinic operates on specific days, but was not operational due to the unrest;
• The eThekwini officials assigned to the pollution line ignore phone calls. When they do take calls, they were rude, unhelpful and refuse to issue call reference numbers;
• The community wasalso worried that the sugarcane growers have continued harvesting the contaminated sugarcane for processing; and
• The remediation process should be completed quickly so that livelihoods from vegetable gardening can resume;

4.VISIT TO DCLM KWADUKUZA 

On the second and last day of the interactions (the 12th of August 2021), the Committee visited the DCLM KwaDukuza Landfill Site to conduct oversight on the waste management strategies and efforts in the city, as part of its mandate. The presentation from DCLM highlighted that the site receives highly hazardous waste and has a Class A licence valid for ten years. The petrochemical industry and the municipality are the main clients of DCLM. Any form of waste to be processed by the facility should be booked beforehand before acceptance. Accepted waste has to be weighed, and samples undergo laboratory analysis. Then, the results will inform the quotation. The company monitors surface and groundwater quality on each activated site.  Each site has to have a membrane laid down before and during preparation to prevent chemical leaching. Due to the pandemic, the company has noticed a decline in waste volumes since the middle of 2020.

 

The area serviced by the company is the Lembe region to the Stanger areas. The company applies various technologies, such as the use of an evaporator to reduce leachate and odour. The recovered water from the evaporation process is potable grade. However, the permit condition allows for the water to be only used for dust suppression. In terms of the National Environmental Management Act and Waste Management Act, all capped cells should be monitored for another 30 years after closure before repurposing the area.

 

The total area has a lifespan of 50 years and, on average, receives between 700 and 900 tons per day. So far, the first cell has been capped, while the second cell is in the process of capping.  The company is already preparing the third cell for commissioning once the second cell reaches maximum use. The current caps are not final because the final capping process requires approval from the DFFE. The company monitors air quality in the area and can model how gaseous chemicals and smell spread into the community. DCLM will upgrade the evaporator warehouse in 2023 to treat leachate and hazardous liquids, requiring R100 million. 

 

5.COMMITTEE FINDINGS AND OBSERVATIONS

Following the interactions with the stakeholders, the Committee makes the following findings and observations:

• The Committee was not satisfied that a proper environmental and risk assessment process was undertaken before the company began its operations in the area of the incident, as is legally prescribed by the National Environmental Management Act, Hazardous Substance Act and the Occupational Health and Safety Act, amongst others;
• The Committee was concerned by the non-compliance with the COVID-19 Regulations by the Sugarcane farmers during the transportation of farm workers;
• The incident revealed a lack of adequate regulation of the industry, which would go a long way in ensuring the curbing of incidents of this kind with regards to the locations of chemical storage facilities;
• The Committee was concerned by what seemed a lack of capacity in human, financial and other resources for the involved government authorities to oversee and facilitate the implementation of appropriate remedial actions following the Cornubia incident;
• The Committee also noted that the UPL had no adequate fire fighting equipment that automatically activated when fire is detected;
• It was also of grave concern that the eThekwini Fire Department could not respond on time to begin with the extinguishment of the fire, and nor could they receive the necessary support from the South African Police Service and the South African National Defence Force to undertake that crucial task on time;
• The Committee further noted with dismay that the plans by UPL were more concerned with the clean-up and reinstating operations, to the detriment of proper assessments and interventions on the impact to human health;
• The Committee was also concerned that government had not required more urgent work to be undertaken in relation to understanding and communicating the impacts on human health, particularly resulting from the air pollution;
• The Committee heard from the Department of Labour’s Health and Safety Specialist that the company had not complied with the legal requirements related to notification, risk assessment and approved emergency plans as per the Major Hazard Installations Regulations (No. R. 692 of 2001) that are supposed to be in place before operations of UPL’s kind can operate;
• It was equally concerning that the company did not yet have the required permit from the eThekwini Municipality to store hazardous chemicals in the area;
• At the time of the visit, both UPL and Environmental Department were yet to release the list of the chemicals and theirMaterial Safety datasheet;
• The Committee observed that there had not been adequate consultation and inclusion of the affected communities or its representatives, leading to strained relations between the parties;
• The Committee also noted the apparent chemicalsmell in the area and were worried about the exposure of school children;
• There was an urgent need for UPL to declare the public liability funds set aside for disasters of this calibre, to assist affected communities recover from the traumas associated with the incident or there be a mechanism for compensation;
• The Committee appreciated the operations and management of the DCLM site and handling of waste;
• The Committee was concerned that the company omitted their employment equity statistics during the presentation. DCLM assured the Committee that they are compliant and have three female directors at the management level.  The operations are supported by 79 permanent staff and 125 personnel sourced from labour brokers. The breakdown of the workforce composition will be availed to the Committee, if needed.
• The Committee sought clarity on the composition of waste and appreciated that electronic waste would be handled to a dedicated recycling warehouse;
• Committee commended the high water recovery rate from the leachate and saw good prospects for application in other areas.

 

6. RECOMMENDATIONS

Having interacted with the UPL, DFFE, KZN Provincial authorities, NGOs, affected community members, farmers, academia and DCLM, the Committee recommends as follows:

• The national, provincial departments, as well as the eThekwini Municipality, furnish the Committee with a report on the company’s standing in relation to legislative and regulatory compliance at various levels as overseen by each of these authorities. This is especially urgent in light of the submission of noncompliance by the health and safety inspectorate at the Department of Labour;
• All departments, as well as UPL, must furnish the Committee with all assessments and investigation reports by no later than 30 September 2021;
• That a multi-stakeholder forum be set up that can work alongside the Joint Operations Committee to ensure the inclusion of all the relevant stakeholders, including the community representatives, academia, researchers in the health fraternity and the NGOs;
• The Committee received responses from UPL at the time of consideration of this Oversight Report and undertakes to engage the contents of the submission in due course;
• The SAPS and related authorities ensure the criminal elements of the investigations are completed timeously, so the consequent management procedures may take their course as per the laws of the Republic;
• The Department should submit a report on progress made towards sending investigation reports from Engen before 30 September 2021;
• The eThekwini Municipality and the Department of Health should furnish the Committee with a thorough report of complaints and occupational health assessment from the communities, including the number of complaints, their status, completion and continuous monitoring;
• The Department, South African Weather Service and eThekwini Municipality should furnish the Committee with a report detailing the number and location of air quality monitoring stations and weather stations for meteorological data within the Metro, their operational status, and why some stations were not working during the week of the incident;
• The Department of Health and the Department of Agriculture, Land Reform and Rural Developmentshould conduct an analysis and legislative review of the Hazardous Substances Act 15 of 1973 as well as the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 to identify gaps and areas that need urgent updating;
• The eThekwini municipality, Provincial Departments of Environment, Labour and Health to conduct inspection on UPL facilities and submit the compliance report by 30 September 2021;
• The Department must submit the Report on the conducted EIA and exemptions in the special economic zone where the UPL warehouse is located; and
• The eThekwini Municipality with support from the specialists in the Department should submit a plan on how the team plans to handle the waste and settled chemicals in and around people’s homes and including continuous monitoring. 

 

Report to be adopted.