United Phosphorus Limited chemical disaster: A gaping legal loophole, or jaw-dropping negligence?

BLOWN: The state-of-the-art warehouse that UPL occupied for just three months before looters set fire to the warehouse, sending an allegedly R1-billion investment up in a toxic plume of smoke. The cost to repair the environmental damage UPL caused could be much greater. (Photo: Mlungisi Mbele)

How did a warehouse storing toxic and flammable chemicals, some of it banned in other countries, quietly move in next door to a school, a Makro superstore and a wetland without anyone knowing?

The agrochemical giant UPL seemingly sidestepped crucial regulatory defences against environmental and health hazards at its warehouse in Durban – something for which residents, wetlands, rivers and beaches have paid the price since the facility was set alight on 12 July during civil unrest.

One immediate consequence was that firefighters called to extinguish the blaze – in the middle of widespread chaos – were unaware they were walking into a hazardous chemical fire, which put their lives at risk and hampered firefighting efforts.

The contents of the warehouse were largely kept secret until amaBhungane revealed an inventory detailing the massive quantities of extremely dangerous materials stored there.

Amongst the chemicals stored were several banned in other countries, including at least 26,000kg of Masta 900, an insecticide containing the “very potent neurotoxin” methomyl, which is banned in India where UPL is headquartered, and for which “contact with skin, inhalation of dust or spray, or swallowing may be fatal”.

The question is: how was such a dangerous facility allowed to set up shop alongside a busy Makro and 400m from a school? 

‘Dangerous goods’

Given the contents of the facility and the fallout from its destruction, it is hard to grasp how UPL got away with not conducting the environmental and risk studies legally prescribed by the National Environmental Management Act (Nema) and the Occupational Health and Safety Act (OSHA). 

Under Nema, storing more than 80m3 of “dangerous goods” is a listed activity and requires a basic assessment report, while storing more than 500m3 requires a full environmental impact assessment (EIA).

By our calculation, the warehouse contained more than 6,000m3 of “crop solution products”, including more than 500m3 of products that contain chemicals so dangerous they are banned elsewhere in the world. 

These chemicals included roughly 150,000 litres of atrazine and atrazine-based products, which are banned in the European Union (EU), and 40,000 litres of products using paraquat, which is banned in more than 50 countries, including the United Kingdom, China, Thailand and EU nations.

A very large proportion of the herbicides, insecticides, fungicides and intermediate chemicals in the warehouse are legally considered “dangerous” in a number of ways. 

This includes the fatal neurotoxins and possible carcinogens, but also products that cause more minor injuries like skin and eye irritations or damage to animals and plants. That means the 500m3 threshold requiring a full EIA was also surpassed many times over.

Clean-up teams with respirators and chemical-resistant PPE wade through the toxic soup of chemicals left behind from the fire and fire-fighting efforts. (Photo: Mlungisi Mbele)

The more than 500m3 of Triclon, a product containing triclopyr butotyl and classified as “flammable, harmful and environmentally hazardous” and which “may cause lung damage if swallowed”, should arguably have triggered an EIA all by itself.

The company, however, denies it had any obligation to conduct an assessment. 

In a press release two weeks after the fire, it said: “UPL was advised, prior to opening, that the leasing and operating of a warehouse for its products did not trigger an environmental assessment under the Nema regulations. That advice has, since the fire, been confirmed by its legal consultants.”

The company would not disclose that formal advice or even the outline of what its legal consultants have argued.

AmaBhungane has established that the legal opinion UPL is relying on was written by Norman Brauteseth, a respected environmental lawyer based in Durban. Brauteseth would not discuss his legal opinion, calling it “well-reasoned” but also “legally privileged”.

Children in harm’s way

Environmental authorisations are not just about ticking boxes.

A crucial part of the EIA process is public participation, which gives impacted communities the opportunity to weigh in before a facility like that of UPL is allowed to start operating.

Reddam Umhlanga, an elite private school and preschool, is situated just across the highway from the warehouse. 

The school has been hesitant to speak out but Keke Raviv, the head of marketing for Inspired Education, the UK group which owns Reddam, provided a few stilted answers:

“Was the school aware of the presence of a chemical warehouse? No,” she told us via email. “We were not contacted regarding an environmental assessment at any stage.”

Asked when it was that UPL had reached out to warn the school about the toxic fumes billowing from the warehouse, she said: “We have had no formal communication from [UPL] or any other entity in this regard.”

This means a school that normally houses hundreds of children had no warning that a chemical company had quietly moved in next door. It had no opportunity to object or develop an evacuation plan in case a disaster occurred. When that disaster happened, just three months after the company moved in, no one from UPL bothered to call.

Among the chemicals stored in the warehouse were at least 36,000 litres of chlorpyrifos-based insecticides which are banned in the EU. The US Environmental Protection Agency banned chlorpyrifos for agricultural use earlier this year because of concerns about “neurodevelopmental effects to infants, children and pregnant women” – in other words, hampering the development of children’s brains.

The only saving grace, Raviv added, was that “this happened over the school holidays”.

Major hazard

Apart from the avoidance of obligations under Nema, UPL has come under fire for not having done a risk assessment in terms of the Occupational Health and Safety Act (OHSA). 

The act calls on anyone putting in place a “major hazard installation” (MHI) to notify the department of labour as well as the provincial and local government. On top of that, they would have to put a notification in a local newspaper and post notices in the surrounding community inviting people to object. 

This would have been a second public participation process after one called for under Nema.

The risk assessment itself would at the very least have to detail “an estimation of the total result in the case of an explosion” and “potential effects of a major incident on any other installation, members of the public and on residential areas”. 

In a 31 July press release, UPL said: “In relation to the risk assessment requirements under the Major Hazardous Installation (MHI) regulations, UPL took the view that its warehouse operation did not constitute an MHI and that it did not need to conduct a risk assessment.”

Gerhard Verdoorn, an expert toxicologist who has advised UPL since the fire, reiterated this to us, reasoning that the MHI regulations only apply when very specific chemicals are at issue – mostly flammable petrochemicals that are listed in other OHS regulations, the General Machinery Regulations of 1988.

None of the extremely dangerous chemicals in the Cornubia warehouse are on that list, Verdoorn pointed out. The current MHI regulations date from 2001, but a draft amendment released for comment in 2019 would potentially have put almost everything in the Cornubia warehouse on the list, but that draft has not yet become legislation.

Even under the current rules, it is not clear-cut whether UPL’s position is valid.

As things stand, the OSHA is at the very least ambiguous on when something is an MHI.

It defines an MHI as an installation where more than the “prescribed quantity” of any substance is or may be kept. This “prescribed quantity” refers to the explicitly listed petrochemicals Verdoorn is alluding to.

But the definition continues: “…any installation where any substance is produced, processed, used, handled or stored in such a form and quantity that it has the potential to cause a major incident.” Any substance.

UPL has previously said: “The prospect of a cataclysmic fire, in the absence of the extraordinary circumstances that occurred in this instance, was extremely low.”

There might be room for legal argument, but UPL’s self-exculpatory position definitely falls foul of industry best practice.

By way of contrast, the local chemical group AECI has registered all its pesticide storage sites as MHIs.

Geraldine Kistin, AECI’s safety, health, environment and quality manager, confirmed that the group has adopted the more expansive definition of such an installation. 

“There are two criteria for determining whether a facility is an MHI: The first is the storage of a quantity of a listed material… This list is limited and focussed mainly on combustibles. The second criteria affects the storage of any material that ‘has the potential to cause a major incident’. The determination of the second criteria requires an expert assessment. All of AECI Plant Health’s MHI’s have been assessed as such by experts.”

The eThekwini municipality has only after the fact awakened to the lack of an MHI registration. Asked if UPL had registered the warehouse, spokesperson Msawakhe Mayisela responded:

“The site did not disclose their MHI status. There was no application or request to Local Authority made for the approval of the site/establishment as an MHI. 

“Upon receipt of the full inventory of the chemicals stored on site, there was no notifiable substances found. However, the client was instructed to evaluate the site risk based on the quantities stored.”

This instruction apparently occurred only after the fire.

A chemical worker removes bags of dead fish from a beach in Umhlanga, northern Durban, following a fire at the UPL chemical warehouse. (Photo: Shiraaz Mohamed)

Pointing fingers

A number of companies played a role in saddling Durban with a secret toxic hazard, including UPL and JSE-listed Fortress REIT. This does create some ambiguity about who could be made to face the music if authorities – or the public – take any kind of legal action related to the lack of an EIA or risk assessment.

In April this year, UPL signed a five-year lease for 14,000m2 of space in the newly-built warehouse in Cornubia, a multi-phase development sandwiched between the gated golf estate of Mount Edgecombe and the tourism hub of Umhlanga.

The Cornubia Ridge Logistics Park, within which the warehouse falls, was initially developed by Tongaat Hulett Developments as part of its ongoing programme of turning sugar cane fields into new urban areas.

In 2016, Tongaat Hulett sold a portion of the Cornubia land to a joint venture led by property investment group Fortress REIT. Together with its partner, M&F Giuricich Developments, it would later build the warehouse that UPL would rent.

In order to comply with Nema, Tongaat Hulett did in fact commission an EIA in 2015 to look at whether the proposed development would pose any risk to the environment or neighbouring communities.

At the time, however, there were no plans to lease out a part of the “mixed use” development for the storage of hazardous chemicals.

But KwaZulu-Natal’s environmental regulators made sure to close this loophole. 

In the written environmental authorisation it warned: “Private facilities that require the storage and handling of dangerous goods that exceed 80m3 in capacity are subject to a separate EIA application prior to the construction and installation of such infrastructure.” 

It added that this clause “must be included” in any future “purchase and sales or lease documentation”.

This means that the normal thresholds for volumes of “dangerous” goods necessitating an EIA under Nema had to be literally written into the UPL lease with Fortress.

The question is: why, despite a clear message from regulators, did UPL fail to commission a new EIA? And why did Fortress allow UPL to occupy the warehouse, knowing it had not done one?

When amaBhungane first questioned UPL about its environmental permits, its public relations firm initially told us to rather speak to JHI Excellerate, the property managers. JHI Excellerate in turn told us to speak to Fortress, the property owners.

Steven Brown, the chief executive of Fortress, pointed the finger back at UPL: “As landlords we require the tenants to obtain all of the approvals that they require in order to operate their business from the premises being rented. This is contained in our lease which is a contract between the landlords and the tenant.

“The key for us now, as I’m sure you will agree, is assisting in the clean-up, and focusing on the rebuilding of our facility once given the go-ahead.”

AECI, UPL’s competitor, does conduct EIAs at sites storing high volumes of dangerous chemicals, but manager Kistin makes one allowance:

“If we were to commence operations on a third-party developed site as a tenant, this activity [an EIA] would not necessarily be triggered, but another activity may be triggered.

“[T]he manufacture, storage and handling of pesticides, insecticides and herbicides is heavily regulated and clearly poses risks to human health and the environment. Whether one of the regulatory triggers for one of the various laws has been met is not always clear and will depend on the specific circumstances in which an activity is undertaken or commences, and on occasion even the experts and regulators may differ.”

Dead fish lie piled near the mouth of the Ohlanga River estuary, northern Durban, after a chemical leak at the UPL warehouse. (Photo: Shiraaz Mohamed)

Firefighters on the front line

UPL has time and again insisted that most of the dangerous materials in the warehouse were likely incinerated in the fire. 

But again, this in no way absolves the company of both legal and ethical requirements. A risk assessment would have ensured that the local fire department knew what was in the warehouse. UPL would also have been forced to draw up an emergency plan and provide copies to local government and emergency services. 

Some risk assessors also advise companies to provide the authorities with detailed safety data sheets setting out the hazards for each chemical on site.

Instead, firefighters arrived unprepared and unaware of the danger they were walking into.

“When the fire was reported to us, the fact that it contained dangerous goods was not communicated to us,” Bheki Hadebe, division commander for eThekwini Fire and Emergency Service, told us via email. 

Although UPL reported the fire on the night of 12 July, the Makro next door had been badly looted and the fire trucks needed a police escort to safely get through the makeshift barricades on the road, meaning they only arrived mid-morning on 13 July. 

“When the fire department was eventually able to attend to it, the fire was so advanced and in places covered by so much rubble and sheet metal from the destroyed warehouse that it took several days to access certain areas and extinguish the smouldering debris,” UPL later said in a press release.

Verdoorn, UPL’s own toxicology expert, described it as “a total fiasco”.

“They had no proper PPE… I would never go to a spill without full PPE and a respirator… the real threat to human life was with the firefighters,” he told amaBhungane

A drone image showing the extent of the damages caused to the UPL warehouse north of Durban, 21 July 2021.
Photo / Shiraaz Mohamed.

Hadebe told us that while firefighters had breathing apparatus to protect them from any toxic fumes, the PPE they had was not designed for chemical spills. UPL had provided the fire department with safety data sheets setting out the risks posed, but only for three herbicides out of the hundreds of chemicals stored in the warehouse: Oris, Leopard and Dizone F3.

It is not clear why UPL chose these three products out of the hundreds in the warehouse. The active ingredients in Oris and Leopard are toxic, while Leopard and Dizone produce toxic fumes in a fire. But these were neither the most common nor the most dangerous products in the warehouse.

Based on those three chemicals, the firefighters felt they were adequately protected, Hadebe said, adding that so far none of the firefighters have reported experiencing any adverse health effects.

But knowing what was in the warehouse could also have changed the strategy firefighters used.

“If they had declared all the chemicals in the warehouse we might have taken a different approach, in terms of the strategy,” Hadebe said. This includes using different firefighting equipment and “fighting the fire from a safe distance”.

Among the chemicals in the warehouse, UPL had a number classified as “highly flammable” as opposed to simply combustible. These include 8,000 litres of Judge, an insecticide containing lufenuron that “will be easily ignited by heat, sparks or flames”. 

There were also 17,600 litres and 26,000kg of highly flammable bromoxynil-based herbicides. Another “extremely” flammable substance in the warehouse was the herbicide Tenazol – 11,000 litres of it.

Many of the substances stored in the warehouse also required very specific fire-fighting methods.

Take, for instance, the 36,000 litres of chlorpyrifos-based insecticides that the EPA banned over risks of developmental effects on children. According to a safety data sheet produced by UPL itself, in case of a fire, emergency responders should use dry powder to extinguish the flames and “avoid water coming in contact with the product”. 

When it burns, chlorpyrifos produces toxic fumes or a “poisonous mist”. Firefighters must wear full PPE with self-contained respirators. The fumes are so bad that the data sheet advises that “severely contaminated clothing that cannot be adequately decontaminated… must be disposed as a hazardous waste”. 

Masta 900, the insecticide containing the “very potent neurotoxin” methomyl, produces “very toxic fumes” of nitrogen dioxide and sulphur dioxide when burned. When fighting fires, the safety data sheet warns: “do not get water inside the containers. Runoff to sewers could create fire or explosion hazard”.

Another product, MSMA 720, specifically warns firefighters: “Do not use direct jet of water. Avoid water coming in contact with the product. Contain water used for fire fighting for later disposal. Avoid the accumulation of polluted run-off from the site.”

Unfortunately, this is precisely what happened.

“Because a significant volume of water was used to extinguish the fire… water from the fire operations overwhelmed the containment system and escaped into the environment,” UPL noted in its 31 July press release.

Damaged water mains then exacerbated the situation: “Large amounts of water that went down the drains with the chemicals were from the onsite water supply that flooded the warehouse after the roof collapsed when there was an explosion from this building,” Hadebe told us.

From here, water contaminated with the toxic soup of insecticides and herbicides flowed into a wetland and into the Ohlanga river, the Umhlanga Nature Reserve and the sea.

“The fish didn’t stand a chance,” Verdoorn told us. “They have almost no resistance to toxins. We are still going to see a massive impact on plants [over time]. The water will, in time, recover but for now the entire area is a hazard zone.”

Thousands of fish in the Ohlanga river and Umhlanga lagoon have been killed by chemicals from the UPL blast.

To date, three-and-a-half tonnes of dead fish and sea-life have been collected from the Ohlanga river and nearby beaches. This is not surprising when one looks at how many UPL products are classified as “very toxic to aquatic life” and “may cause long lasting harmful effects to aquatic life”.

Radio silence

For weeks after the fire, the community and authorities had to guess what was in the plumes of smoke and the runoff that contaminated rivers.

By contrast, a nearby company, Digistics, issued a pre-emptive notice to authorities and residents on 13 July warning that its Cornubia warehouse contained a relatively small amount, 2,500kg, of a hazardous and explosive anhydrous ammonia. 

“First responders and authorities must prepare to react to an emergency situation with the utmost of caution and be prepared for necessitated evacuation of the immediate and surrounding areas otherwise,” the company said, providing the cell phone number of the regional manager.

UPL did not respond to our detailed questions. Instead, its public relations firm referred us to the holding statement UPL has used since 24 July: 

“We apologise that our client is unable to provide you with a detailed response at this time. Their immediate efforts… have been directed at extinguishing the fire, containing the escape of product from the facility property, and dealing with the many tasks associated with those activities.” DM/OBP

Absa OBP

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All Comments 21

  • Astonishing case and article. Yet another example where the words democracy and constitution is nothing but a joke in this country. Eleven years and again no justice! Where a political party governs the country. Incompetent, and even criminal, people employed as ministers, premiers, majors, and now even as speaker of parliament (where voting was overseen by a criminal judge), due to cadre deployment. Where the government has no control over the prevention of crimes, looting, and murders. Corruption the name of the game. And nobody brought to book!

    • But where is the outrage from the ratepayers in Umhlanga, Umhloti and Durban generally? Are we so immune to the corruption of our government and Municipality, that we no longer care? This is the saddest part of it all – like frogs in boiling water, we have adjusted to accepting that anything goes – brown envelope backhanders to turn a blind eye are just part of life. This is not India – it is beautiful South Africa……we need to get back to ethical living, protecting the fragile environment that gives us so much and demanding that those in charge…and to whom we pay to do what is right for our communities, are accountable.

        • I couldn’t agree with you more Jane. Follow the money and I am absolutely convinced that it will be found that UPL paid officials to look the other way. I agree too that the ratepayers of Umhlanga, Umhloti and Durban should be raising a huge stink and considering a class action lawsuit against UPL.

  • My first question is, what signage was displayed outside at the perimeter of the property prior to the fire? This would give some indication as to what was on site!
    Secondly, a class action suit of a suitable magnitude to hurt UPL on the same or similar scale to the damage wrought on the community seems the most appropriate response. A couple of billion US$ would seem appropriate, particularly considering the toxic damage to soil and property prices?

  • As stated on previous article. Consider this a toxic dump site. It is an international disaster and could be used internationally to show devious intentions from international companies.

  • The real problem here is not necessarily the government but large private companies ducking and diving and not accepting any responsibility. Whether anything will happen to them is going to be the interesting thing.

  • If these toxic ‘crop solution products’ hadn’t been burned and washed away, where would they have gone as a matter of course? Into the ground (which can hardly be called ‘soil’ any more) and onto the growing plants, and from there into the groundwater and into our food, until the cycle repeats itself the following year. This is the grim situation we’ve arrived at with the industrialisation of food production and the reduction of farmers to being the addicted debtors to transnational chemical corporations. Fortunately, but on too small a scale so far, the movement for regenerative agriculture – in which rebuilding the soil in partnership with natural forces is the key – is starting to spread.

  • If the department of labour wasn’t asleep they would have issued stop work orders for all the UPL sites in the country, pending a full review of EIAs and workplace safety reviews, as well as local fire department reviews of site safety plans.

  • If the enviro attorney for UPL, Mr Brauteseth, is so convinced that his advice was ‘well reasoned’ why does he not reveal the basis of his argument? It is noted that on his web site the last news posted under ‘environment’ is 9 Oct 2012. And in this comment on the water services act is the following: ‘it also has an environmental aim which is to protect equatic and associated ecosystems and their biological diversity, and to reduce and prevent pollution and the degradation of water resources.’ Section 8 of this news comment deals with ‘Pollution Prevention and Remediation’ – all relevant to the advise he must have given to UPL. Clear dereliction and no common sense related to the storage of these chemicals at this facility and at this location. Joint and several liability for sure.

  • UPL was clearly in breach of the Environmental Protection Act, and the resultant fallout from the sabotage and fire caused by the riots has the potential to open them up to massive litigation. I would also think that the claims under the insurance policies covering the building and contents might be an interesting affair, particularly as there was most likely a total loss situation i.e. a potentially BIG payout.

    • In addition to the fact that insurance may decline to pay out, due to possible non-compliance to legal requirements, is the actual cost of rehabilitation of the site, which will likely run into millions of rand and inability by the property owners & management company to lease the property to anyone for the next few years.

  • The undeniable responsibility for this terrible occurrence and concomitant dangerous outcomes lies with at minimum with three despicable participants; firstly the applicant (Company responsible for the origination of the building and it’s subsequent use), secondly, the City Planning structure that obviously did no investigation into the entire scheme and it’s positioning within a resort “Capital”, of the North Coast and finally the Company proscribed for acceptance of the Environmental, Social, Health and Safety, Impact and outcomes for the area into which the, first applicant was to be approved.

    I suspect, the normal requirements and approvals were circumvented in regards to this development, if you do a little delving into the participants you can deduce how and why! I shall say no more.

  • This has to be taken up by the community in the area. This is an outrage and a tragic lack of local government protecting the people (I will not mention the company as it is yet another ridiculous case of greedy business people disregarding law and especially the value of human life and community – the love of money ruling all (sickening!!)).
    Evil triumphs when good people do nothing: so now, good people of KZN community, what you gonna do?

  • This could have turned into our own Bhopal, (India), gas disaster when on the night of 02nd December 1984 methyl isocyanate leaked from the Union Carbide plant killing 3,787, (some claim up to 16,000), and 558,125 injured through breathing in the fumes. It’s absolutely unforgivable that UPL were allowed to set up shop where they did. Even if they complied with all requirements, it should have been a no-no. And when I read about the fireman responding to this fire, I think of those firemen responding to the ammonium nitrate fire in Beirut, they also had no idea that there was 2,750 tons of AN on fire inside that warehouse. The same could’ve happened at the UPL site.

  • There are rules and as a company involved in working with chemicals. UPL would have known what these are.
    They were the only people who know what was on site. The key is to make management criminally liable for their misdeeds.
    Neither the owners of the property nor the city council would know what was on site beyond what UPL said at the start of the lease. Their submission to council and other authorities should make interesting reading!

    • The crux of the matter ….” only UPL knew what was on site”. Well said sir, that is the key.
      I do not live in the area affected but an intending to take a stand over this incident – mainly to ensure that the guilty parties are accountable and something like this is NEVER ever allowed to happen again anywhere in South Africa.
      Perhaps those families in Umhlanga, Umhloti, Tongaat, Stanger, Durban North , La Lucia…in fact anyone from anywhere who feels compelled to support a Class Action could contact amaBhungane by email to pledge support for possible legal action, or just to record disgust at what has transpired. Showing you care will inspire those that will do the work in holding those responsible to account.

  • Having read various articles and comments on this disaster, i have not seen any reference to whether the various products stored are locally manufactured or imported, but i suspect the latter to be true for many of them. In case i’m correct, some investigation into this and the relevant supporting documentation may reveal a more accurate picture of what chemicals were declared at time of importation and whether or not any deception by UPL and therefore intent, can be evidenced.
    SARS Customs & Excise import declarations will record the declared CAS number (chemical abstracts service) an international system . As SA is a member of the World Customs Organisation, importers are subject to the same rules. This search may also reveal whether or not any 3rd party govt agency approval is required before imported goods can be released. It may be that importation of these chemicals is not restricted and / or there is no link between importation and storage of same.