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UPL spill — chemical firm has never ‘refused to recognise the Multi-Stakeholder Forum’

The warehouse that UPL occupied for just three months before looters set fire to the warehouse on 21 July 2021, sending an allegedly R1-billion investment up in a toxic plume of smoke. The cost to repair the environmental damage caused could be much greater. (Photo: Mlungisi Mbele)
By Jan Botha
23 May 2022 1

The UPL Multi-Stakeholder Forum has still not yet been established. About six months later all that exists is a steering committee.

The article signed by various persons ostensibly on behalf of the UPL Multi-Stakeholder Forum (MSF) on 8 May 2022 has reference.

The thrust of the article put out by the authors is that UPL is “not yet prepared to take accountability for the damage done to human livelihoods and health”. Within the narrative of that supposed lack of accountability, it is stated that UPL has “refused to recognise the MSF set up by the MEC for Economic Development, Tourism and Environmental Affairs”. The article regrettably contains many other similar allegations largely aimed at discrediting UPL. Principal in the accusations is UPL’s apparently reprehensible attitude towards the MSF.

The fact of the matter, however, is that the MSF has still not been established. Readers will have noted that the article is signed by the “nominees for appointment to the MSF steering committee”. That is because even though the establishment of the MSF was announced in October 2021, about six months later all that exists of the MSF is a steering committee. The sole and only role of the steering committee, according to the MEC’s legal adviser in a December 2021 communication, is to finalise its terms of reference and assist in identifying members of the final committee. Despite repeated correspondence, UPL has been advised that the final committee has still not been appointed, nor have its terms of reference been finalised.

UPL has never “refused to recognise the MSF”. 

It has stated, numerous times, that it awaits the establishment of the MSF and the finalised terms of reference before committing itself to formal engagements with that body. The reason for its hesitation in doing so is that the draft terms of reference, if they are retained in the form circulated to UPL for comment late in 2021, will accord powers to the MSF that are untenable.

In UPL’s view, confirmed by legal advice, the MSF should be a reference and commenting body, and the powers it seeks would usurp the functions of the statutory bodies to whom UPL is legally accountable. UPL’s submissions in those regards have been made to the MEC and for reasons known only to the MEC and his advisers, no decision on either the MSF’s composition or terms of reference has been made. It has now been more than six months since those comments were made. 

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The signatories to the article have also accused UPL of having refused to meet with the MSF. That is completely untrue. Even though the status of the MSF had still not been resolved, UPL was requested to attend a site inspection and make presentations to the steering committee in February 2022. The core members of the UPL specialist team took some of the members of the steering committee on the site inspection, but neither they nor the officials present were able to give any clarity on whether those persons were or were not nominees to the committee or whether they would even be appointed in due course. The presentation meeting was postponed by the officials and has not been reconvened. 

The situation remains unresolved. The delay in appointing the MSF and in finalising its terms of reference is not helpful to anyone. UPL can scarcely be accused of failing to recognise or work with a forum that has not yet been constituted. And by describing themselves correctly as “the nominees” of the forum, the signatories clearly recognise the true situation. The steering committee has no mandate beyond making sure that the final committee is set up and that its terms of reference are finalised.

The signatories have detailed a number of clean-up and remediation issues with which they take issue and on which they have made comment to the authorities. That is as it should be, and those comments are doubtless informing the responses of the authorities in interactions with UPL. They have also set out other matters that cause them concern. The sooner the forum is properly set up and its powers, role and functions are established, the sooner the rules of engagement between the authorities, UPL and the MSF will be clarified. 

In the interim, UPL is attending to its responsibilities under the directives and guidance of the authorities. It has not only stated its commitment to the clean-up and rehabilitation of the affected environment, but has also appointed a team of the finest experts in the country to oversee every aspect of those responsibilities. To suggest that it is “not accountable” is manifestly incorrect.

To this end, UPL is pleased that its extensive efforts have resulted in remarkable progress. Overall, the concentrations of contaminants/substances related to the spill have declined substantially in the system since the end of November 2021. 

Revegetation trials have also begun, in January 2022, and work with grass sods has shown promise in re-establishing vegetation, especially when sods are sampled from local areas and supplemented with guano. A further expert report from March 2022 on bivalves (oysters and mussels) in the spill-affected coastal area indicated that these do not represent a threat to human health as a result of the spill. 

The UPL attack not only created a significant contamination event, but it also caused anxiety among potentially affected members of the community in regard to their health and wellbeing. UPL’s clearly stated position is that while it is not culpable for the event or its effects, it accepts its responsibility for the containment, clean-up and rehabilitation of the affected environments. 

UPL, in collaboration with health authorities, also established an occupational health clinic (staffed at UPL’s expense) in Umdloti, and there has been an extensive public awareness campaign inviting the public and complainants for a health assessment. It appears from both the testing of first responders and on-site personnel, and those who have attended the clinic, that there are very few, if any, chronic health impacts attributable to the fire or spill. 

It is clear that UPL has invested considerable money and time to mitigate the impact of the chemical spill resulting from the arson attack, and does not appreciate grandstanding and unjustified criticism. It recognises the role of the forum, once it is properly constituted, as an important stakeholder body and looks forward to engaging with it in a proper manner when that occurs in the future. DM

Jan Botha is commercial director of UPL South Africa.

 

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  • Classic look over there strategy! The committee this or that. The starting point of any discussion about this disaster is what inventory was on site and whether that inventory and its storage, including a containment bund, complied with regulations. UPL came to our town after Durban and wanted to rent warehouses urgently. Agricultural fertilizers sound harmless. Until you examine the material safety data sheet that is. This is not compost filled with earth worms and all things wholesome…

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