Document(s) 14 of 15

Introduction

The tragic events at Thor Chemicals have become a landmark in the history of enviromental struggles in South Africa.¹ They brought to the fore the inextricable connections between the health and safety of workers and the broader natural environment. They were also a demonstration of the dramatic failure of the administrative and legal systems which were meant to protect the health of workers and the integrity of environmental resources.

While not on the scale of the Bhopal disaster, Thor Chemicals was a warning sign that the systems which South African society, industry and the state had established were insufficient to meet the challenges of handling toxic and biologically hazardous materials. The disentangling of the events at the company will help us to understand the weak points within these environmental and occupational health management systems and to improve them. If industry is to use hazardous chemicals it must be in a position to manage them safely. It must also not be able to do this by passing the risks to either its workers or to society at large. If the state allows the use of hazardous chemicals by industry it must be in a position to ensure that industry is able to do so responsibly. The crisis at Thor Chemicals showed us that these conditions were not being met and that we should learn its lessons to ensure that it does not happen again.

A brief history of environmental, health and safety issues in the company

In 1959 Thor Chemicals was founded and registered as a company. It began as a small “backyard” operation in Margate, England, established and owned by Des Cowley. Thor Chemicals is now a British-based multinational which is involved in the manufacture and processing of chemicals. It has a number of operating, wholly owned subsidiaries in various countries, including the USA, Germany and South Africa. Most of these subsidiaries are not manufacturers but rather brokers of Thor’s products. The South African division of Thor Chemicals was established in 1963.

¹This chapter is presented in memory of the Thor workers who have died. It was written as a contribution to the campaign to expose what went wrong and to prevent similar occurrences in the future. Given the nature of some of the issues addressed in this chapter, certain sources of information must necessarily remain confidential.

From 1978 monitoring by British health inspectors showed environmental health problems and poisonings at the Margate plant. The findings of the UK health and safety executive indicated that the health of British workers was being negatively affected. A 1981 inspection at the UK plant found airborne levels of mercury 20 times higher than the acceptable limit, and in 1983 another inspection at the UK plant found the same high levels persisting. By 1987, the health and safety executive, which was still finding unacceptable levels at the Margate plant, issued an ultimatum to Thor—to either clean up or face court action (UK health and safety executive 1994). That year Thor discontinued its mercury operations in the UK but its South African mercury processing operations continued.

Thor Chemicals in South Africa

Senior Thor staff who had been involved in the Margate plant were responsible for transferring its mercury processing operations to South Africa by designing and establishing a plant at Cato Ridge, KwaZulu-Natal, where the factory remains to this day. Thor built its mercury reprocessing facility in the late 1970s, following the signing of a contract in 1976 to supply mercury catalysts to the South African firm, African Explosives and Chemical Industries (AECI). Consequently, the establishment of this plant was accompanied by massive imports of mercury wastes into South Africa by Thor. Thor chairman Des Cowley said:

Because of the quantity, we also agreed to develop a method for recycling the mercury. It was very obvious, because of the nature of the mercury compounds, that one could not continue to manufacture them unless you were prepared to recycle them.

And so Thor’s trade in mercury wastes began. Besides recycling spent catalysts from AECI, Thor began importing mercury wastes from all over the world, burning them in its incinerator and extracting the mercury to resell. “Economically it is an extremely viable trade,” said a chemical engineering expert who did not want to be named. “The purchase price is very low, and the sale price of the finished products, very high” (Kockott 1994, unpublished notes).

The African residential areas near the Thor plan are economically very depressed and so, on the whole, people were glad to have a factory that provided jobs. Comparatively speaking, Thor is one of the best employers in the area. As a senior black worker at Thor said (cited in Kockott 1994:5):

Full-time employees get medical aid for themselves and their families, very good pay, free transport to and from work, and cheap food on shift. I do not know of another factory that can offer this.

It would appear, however, that the health and safety problems that had earlier been identified in Margate, England, were replicated at the Cato Ridge operation.

The production processes at Thor Chemicals

There were essentially two distinct, mercury-related aspects to Thor’s operations at Cato Ridge. On the one hand, Thor ran a mercurials plant to manufacture organo-mercury-based compounds (biocides and battery fillers). It was in this section that workers suffered the poisonings that would become the focus of much attention and a court case. On the other hand, Thor set up a series of processes to recover mercury from used mercury-related wastes which they would take from international industries for a fee.

There were three other plants at Thor, in addition to the mercury-related processes discussed above:

• one produced metallic soaps which are used as paint-drying chemicals;
  
  
• another section dealt with textile additives and non-mercurial biocides; and
  
  
• the third was a catalyst plant. This plant was in some senses separate from the recycling plant but it is where Thor produced mercury catalysts. Therefore, this plant has a link with the mercury problems generally associated with Thor. This plant takes mercuric chloride (HgCl^ which Thor produces by combining metal mercury (Hg) (which it gets partially from its recycling process and partially by purchase) with chlorine (CI2), and impregnates it into carbon up to an 11 % concentration. This product is then sold to customers as a catalyst for producing polyvinyl chloride. The link between this product and Thor’s recycling plant occurs because, after use by client companies, the activated carbon still contains mercury up to a concentration of 4%. The customers then pay Thor a processing fee to take back this spent catalyst to recover the residual mercury left in the activated carbon. After reclaiming the metal mercury, it is purified and used in the production of mercuric chloride, which takes us back to the early stage in the cycle described above.

Thor Chemicals’ mercury recycling: A potentially good idea?

If we leave aside for the moment the inherent dangers of working with substances like mercury, we can see why some have argued that Thor’s process was environmentally a good idea. Thor produced a marketable product, took back the depleted catalyst and contaminated sludges (wastes) after the product had been used, and extracted the mercury from those in order to make more of the original product. Ideally, the process would have been a “closed loop” production system with the least possible environmental contamination. When the Wildlife Society of Southern Africa asked environmental consultant Ray Lombard to investigate and report on Thor Chemicals and mercury pollution in 1990, he praised the factory’s processes. He concluded that “Thor Chemicals should be encouraged to continue with the recovery process” (Lombard 1990). Lombard argued that:

In the case of Thor Chemicals the importation of spent catalyst... is an important source of raw material.... This is not a disposal operation! It is a recovery process.... The elimination of toxic waste from the waste stream through resource recovery is an elegant application of the European Greens’ non-waste technology option of environment protection.

But it appears that the recycling never worked as it was theoretically meant to.

Thor Chemicals’ recycling of mercury in practice

The basic idea underlying the production process was that wastes which had mercury in them could be burned at high temperatures in order to, on the one hand, destroy or make harmless the non-mercury part of the wastes, while on the other hand, vaporise the mercury so that it could be collected through condensation. Thor’s first attempt at recovering mercury was by means of a small fluidised bed furnace. This did yield some metal mercury from spent catalyst, but only on a small scale. During this time the incoming spent catalyst grossly exceeded the capacity of the fluidised furnace to process it.

Therefore, Thor decided to build a larger cellular furnace which could process up to a maximum of two tonnes per day. Like the small fluidised bed furnace, the larger one required the physical loading of mercury wastes into the furnace. Despite suction, introducing flammable liquids into this furnace would result in huge flames from the loading port. Also, the burnt solid wastes or residues from this process were still too dangerous for disposal on a normal landfill site, and they were periodically put into drums and stored in warehouses at Thor.

However, even this larger furnace was not large enough and the stockpile of mercury wastes which Thor had taken back but could not process, was increasing. It was decided to build a rotary furnace which could handle up to 12 tonnes of material per day. Thor completed construction of this new rotary kiln incinerator in 1992. This furnace was more advanced in design, and there are some critics of Thor who believe that if this furnace had been operated properly and if certain, relatively expensive, modifications had been made, it would have been a worthwhile operation. The aim was to incinerate mercury catalyst and wastes, thereby producing solid waste, which would be disposed of, and reducing Hg+ and Hg+ + to Hg°, that is, metal mercury. The metal mercury would then be purified by distillation in the distillation plant, after which it could be used to produce the mercuric chloride product which Thor sold.

In its trial phase, the rotary kiln incinerator could only deal with spent catalyst and not the other sludges and wastes that Thor had accumulated from clients across the world. The composition of these sludges and wastes varies from the contaminated protective clothing of workers in processing plants to dangerously contaminated concrete from such plants, and came from such sources as reactor washings and plant clean-ups. An attempt to mix these sludges with carbon was unsuccessful because the exothermic reaction—that is, its reactions with the heat generated by the furnace—made it impossible to load into the feed silo. Therefore, sludge that emanated from AECI, Borden Chemicals and Plastics and American Cyanamide remained largely unprocessed.

In addition, some of the design features that would have helped make the process safer were allegedly never adhered to. For example, the continuous mercury monitor which was supposed to control atmospheric emissions and which was linked to a string of safety devices was never functional. Also, an emergency carbon filter and a normal processing carbon filter were supposed to be charged with sulphur-impregnated carbon to trap any mercury breakthrough. According to reliable sources these were never properly functional until January 1994 after the Department of Air Pollution Control discovered in November 1993 that the normal processing filter contained incinerated carbon and that the emergency filter was empty (Kockott 1994:18).

Although it was meant to be better than Thor’s previous processes for retrieving mercury, the rotary furnace still produced solid residues from its incineration process that were too high in mercury content to be disposed of by usual means. Thor decided to deal with this problem by disposing of these residue wastes into a plastic-lined dam on its own property.

We have seen above that Thor experienced ongoing difficulties trying to process the wastes that it was being paid to take from industries all over the world, because it never really had sufficient technical capacity to do so. This created a serious backlog and, as a result, Thor had a storage capacity crisis with the large volumes of existing and incoming wastes. Therefore, it also decided to dump drums containing solid residues from previous attempts at recovery, into the dam to free up warehouse space.

In February 1994, an African National Congress-sponsored delegation toured Thor. They found three warehouses on Thor’s property containing at least 10 000 be rrels of mercury wastes.

Of particular concern was the number of rusting, leaking, overturned and spilling drums, and rusting drums and wastes strewn on the floor.... Mr van der Vyver [Thor’s managing director] admitted that Thor had not been processing lie stockpiled waste... and that the incineration process had been unable to re nrieve usable mercury... The only real profit to be gained from the waste was that Thor was paid over one thousand dollars per ton to receive it (Kockott 1994 7).

Thor’s operations come to public attention

In a letter written in response to queries from the office of international activities of the USA Environmental Protection Agency in February 1986, Thor Chemicals Inc. (1986), from its branch in Norwalk, USA, said it believed that its plant at Cato Ridge “is the world’s largest, continuously-operating recovery plant for processing Mercury metal and Mercury chemicals from spent catalyst. This is the first time that our intentions to reclaim and recycle Mercury and Mercury chemicals from spent catalysts have been questioned. … You asked about environmental impact, and we can state that it is nil.”

In South Africa the alert was sounded after water quality problems downstream of Thor’s plant were noticed^.2 On 14 July 1988, Umgeni Water Board’s regular monitoring of water quality picked up levels of mercury in the Umgeni River—more than 15 kilometres downstream from Thor—that were 1 000 times higher than the World Heallh Organisation’s drinking water standard. They traced the problem back to a spring adjacent to Thor’s property.

The Department of Water Affairs and Forestry is the regulatory authority with the responsibility to enforce the law relating to the pollution of water sources. However, it did not act against Thor. In August 1989, an official of Umgeni Water, frustrated t y the lack of action to deal with the problem, leaked the information to the local press. By September the department announced an investigation into Thor’s water pollution. In November 1989, a reporter from a USA newspaper sampled water at the head of the Mcgweni River, which is fed by a spring a little distance away from the plant. The reporter found some of the highest levels of mercury pollution ever recorded (Lambrecht 1989, cited in Kockott 1994: 17). In February 1990, Greenpeace researchers took soil and water samples around the plant, proving that Thor was responsible for the pollution. Sediment samples were 8 000 times higher than the USA standard for classifying a substance as hazardous waste.

² The following is summarised from Kockott 1994.

Poisoned workers

During March 1990, Earthlife Africa, which had been monitoring and exposing issues related to Thor since the pollution story first broke in South Africa, first heard reports concerning the impact of Thor’s operations on the workers at the plant. Workers were reported to be “going mad”. According to Koch (1991):

in April 1990 protests were launched by the Earthlife branch in Pietermaritzburg in cooperation with the CWIU and Greenpeace International. The protests were directed not only against Thor, but also against the US multinational, American Cyanamide. The corporation exports about 10 tons of waste to the South African plant each year. Black peasants, white farmers, students, unionised workers, green activists and a traditional Zulu chief banded together to protest at the importation of toxic waste to South Africa and held a large demonstration outside the gates of Thor. Rod Crompton, General Secretary of the CWIU, commented that the protest signalled the potential for a powerful ‘rainbow alliance’ between green groups and the country’s black labour movement.

These protests were supported by other organisations. On the same day, protests in New Jersey, USA, against shipments of mercury waste from American Cyanamide to Thor, were violently broken up by riot police (Kockott 1994:3). The Industrial Health Unit, a non-governmental organisation in South Africa, was also very important in providing independent medical services to the workers at Thor, and in analysing and publicising the impact of Thor’s operations on its workers.

During April 1990, under pressure from the South African government, Thor’s mercury-related operations were suspended because of mercury pollution. In September that year, South Africa announced a ban on waste imports, but quietly granted Thor an exemption to the ban on condition that it only import toxic waste generated directly from the use of catalyst they produced (Kotze 1990). On 15 April 1991, Thor’s client company, American Cyanamide, announced that it would no longer ship wastes to Thor due to the “fuss and furore” surrounding these activities. During the same year, however, officials from another major Thor client, Borden Chemicals and Plastics, visited Thor and declared it to be “well-kept and well-maintained” (The Times-Picayune, 1994).

At the time when critical issues concerning the environment and workers’ health and safety first emerged, workers at Thor were not represented by a trade union. The CWIU won a recognition agreement at Thor Chemicals in August 1991. In the same year tests on workers by the Industrial Health Unit showed that 87% of workers had mercury levels that were above the safe limit of 50 parts per billion and that the average level was 200 parts per billion. The Industrial Health Unit called for a full government inquiry but received no response from the authorities (Colvin 1992).

Thor before the International Water Tribunal

Early in 1992, Earthlife Africa was instrumental in taking the Thor matter before the International Water Tribunal. The tribunal’s hearings were hampered by the refusal of the South African government to release important information, and by Thor’s refusal to attend the hearings. The tribunal (1992) found that there was insufficient evidence to directly link Thor’s operations to pollution of water sources, but stated:

The defendant’s [Thor’s] response to the complaint was misleading and evasive. … An independent environment assessment should be carried out and the results made public.… Since there is limited access to information in South Africa, and since, in this case, the industry is working with a hazardous substance, it is of vital importance that populations who think they are at risk should have the rights to information and access to courts.

The process was useful in creating greater international and media exposure around the issue. Earthlife Africa stated that it was satisfied with the verdict of the jury and called on Thor and the government to accept and implement the recommendations made. The organisation reiterated its call for a judicial commission of inquiry into the whole matter (Earthlife Africa 1992).

Thor workers hospitalised

On 25 February 1992, a Thor worker, Peter Cele, was admitted to hospital. There was no diagnosis and no specific treatment, and he lapsed into a coma. On 3 March, another Thor worker, Engelbert Ngcobo, was admitted to hospital. He, too, lapsed into a coma after no diagnosis, and no specific treatment was given. On March 18, Albert Dlamini was admitted to hospital by Thor after reportedly going berserk at the plant.

Report by the National Centre for Occupational Health

During April 1992, Professor Tony Davies, of the National Centre for Occupational Health, conducted an inquiry into the health of workers and safety conditions at the plant. Subsequent screening of Thor workers revealed that 28% of the workforce were in danger of permanent damage from mercury poisoning (Kockott 1994:24). Professor Davies’s report and the subsequent formal enquiry by the Department of Manpower at Thor were important for the subsequent formulation of criminal charges against Thor. Davies completed his report in April 1992. It indicated that there was “indisputable evidence of a risk to the health of workers at Thor Chemicals” (Natal Witness 1992a).

Growing public pressure and media exposure of the issues at Thor resulted in a formal Department of Manpower enquiry into mercury contamination at the Thor plant. The enquiry, conducted between 13-15 July 1992, revealed gross negligence leading to the poisoning of at least 29 workers (Davies 1992).

Criminal prosecution initiated

Key outcomes of the Department of Manpower’s enquiry were a number of recommendations about the future operation of the Thor factory, and the handing over of the report to the Attorney-General of Natal, Tim McNally, to consider criminal prosecution against Thor. In October 1992 it was reported that the Department of Manpower had handed over its report on Thor to the Attorney-General’s office. According to a report in the Natal Witness (1992b), a spokesman for the Attorney-General’s office confirmed that they had received the report, which he described as lengthy and complex. He added that “it would take some time to ‘go through’ before action, if any, is taken”.

On 9 December 1992, the Director-General of the Department of National Health gave permission to Thor to import CINNCARB, a sulphide of mercury (Department of National Health and Population Development 1992). The previous exemption from the “ban” on importing hazardous wastes that had been granted to Thor was on condition that the “company does not accept spent chemicals for recycling other than those originating from your company” (Kotze 1990). CINNCARB is a hazardous waste generated by the American company Calgon, based in Indonesia, and does not originate from Thor.

Shortly after this permission was granted, a former Thor employee, Peter Cele (aged 22), died in July 1993 after 16 months in a coma in hospital. By August 1993 it was reported that the “results of tests done on a former Thor employee’s body will be received by the Attorney-General’s office this week, and a decision whether to prosecute the company will be taken shortly afterwards” (Daily News 1993). During September 1993, the Natal Mercury (1993) reported that the Attorney-General was considering adding a further count of culpable homicide to the original charges after the death of another former employee, T. F. Shange. Although Shange had died about three weeks previously, his position as a former Thor worker “only emerged after the Natal Mercury approached Attorney-General Tim McNally with a list of questions” (Natal Mercury 1993).

The Attorney-General had indeed sat on the “lengthy and complex” Department of Manpower inquiry report for a long time but, in August 1993, he eventually charged Thor Chemicals and three of its top management officials (Managing Director Steve van der Vyver, Manager Gavin Daniels, and Chief Supervisor William Smith) with culpable homicide—relating to the deaths of Thor workers from mercury poisoning, and 42 other charges under the Machinery and Occupational Safety Act. The Thor bosses appeared in court in November 1993 and the case was enrolled for trial in May 1994.

Air pollution from Thor

During November 1993, Nelson Mandela visited former Thor employee Engelbert Ngcobo at King Edward Hospital. On that occasion, environmental activists drew the public’s attention to further alleged environmental malpractices by Thor.

It was claimed by environmentalists that Thor had been burning toxic wastes at unsafe temperatures and without the required permit or license from the authorities, for a year. This incineration was taking place in Thor’s new rotary kiln, which had been designed to burn hazardous wastes. This is a “scheduled process” in terms of South African law and it, therefore, requires a government license to operate. Although Thor had applied for such a license, the chief air pollution control officer for South Africa confirmed that by late 1993 no such license had been granted.

An oral agreement for limited “test run” burning had been granted, but informed sources indicated that Thor Chemicals had been burning toxic wastes for the whole year— allegedly without even rudimentary monitoring and safety features. Chris Albertyn, of the Environmental Justice Networking Forum, said:

The air pollution from incineration at Thor poses a grave threat to the health of people and the environment in the area and we want to know why the authorities have failed to act.

In addition to the air pollution problems, Earthlife Africa said it had reason to believe that Thor was also disregarding government instructions and requirements by dumping the toxic ash from the incineration process into a dam on its premises instead of sending it to a licensed toxic waste site.

Further prosecutions?

On 16 November 1993, Chris Albertyn submitted a complaint to the Attorney-General of Natal, drawing his attention to these alleged breaches of the law over and above those that were the subject of the existing criminal court case against Thor. Albertyn (1993) said:

I am taking the rather unusual step of bringing this complaint directly to you as a recent experience has indicated to me the inability of the relevant state authorities to adequately pursue this matter.

The Department of Water Affairs and Forestry (1993) said in response to these inquiries that “the reason why the ash … is not disposed of at a Class 1 facility is because it is being stored on a temporary basis in the dam so that it can be further incinerated to remove most of the mercury.… [Thor Chemicals] are at present considering applying for a [Class 1 disposal facility] permit and this Department is also considering requesting Thor to do so in order to legalise the current situation. The award of such a permit would then allow Thor to permanently dispose their waste products on site.”

In April 1995, the Attorney-General (McNally 1993) finally wrote to Albertyn, saying that he had come to the conclusion that there were no prospects of a successful prosecution and that, accordingly, he would “decline to prosecute any person at this stage”.

The legal battles over culpability

Some of those who observed the conduct of the case against Thor were concerned that the state’s prosecution was not sufficiently resourced and that, as a result, the case was not being contested on a level playing field. When offers of funding and support from international non-governmental organisations were rejected by the prosecution, some wondered whether the ineffective prosecution of the case was the result of a simple lack of resources or a deeper unwillingness to prosecute the case vigorously.

Thor’s defence team managed to have 19 of the charges under the Machinery and Occupational Safety Act withdrawn, and also convinced the magistrate, on technical grounds, that a number of demands relating to the safety of the workforce that had been made of Thor by the Department of Manpower were not enforceable. An observer of the court case notes that:

The strategy of the defence team appeared to be to create a distinction between the three workers who they admitted had been poisoned by mercury (Cele, Ngcobo and Dlamini) and the other retrenched workers whom it was implied, were misleading doctors by reporting signs of mercury intoxication in the hope of getting compensation. Clearly if poisoning were only established in relation to the three workers, the argument that the entire workplace was unsafe and hence the management negligent, would be undermined.

Thor had always argued, from the time of the Department of Manpower inquiry onward, that the illnesses of the three workers resulted not from long-term “chronic” exposure to mercury, but rather from one or two “acute” exposures for which the company was not responsible. Thor Managing Director Des Cowley had earlier developed and continued to use a “sabotage theory” to account for such acute exposures—that someone had deliberately exposed the three workers to massive doses of mercury by tampering with the air line that supplied their air hoods. By using the “sabotage theory”, Thor separated the issue of the three workers who had died—and for whose deaths they were being charged with culpable homicide—from general exposure to mercury by the rest of the workforce.

Instead of immediately and proactively drawing on offers of international expertise to assess the veracity of such claims, it seemed that the prosecution was without its own agenda, and had gained its technical knowledge primarily from the defence experts. Therefore, the prosecution was effectively reduced to responding to the defence case rather than presenting a positive case itself. It appeared that the gathering of evidence by the Department of Manpower before and during the trial was deficient, and that there was inadequate pre-trial preparation in general.

The gap in technical expertise was ultimately recognised and the prosecutor argued for the participation of an international mercury expert and secured an undertaking from the state to cover the expenses involved in bringing such an individual to testify on the mercury poisoning issues raised in the trial. On 14 February, after three-and-a-half hours of intense debate, the prosecution’s application for an adjournment to allow the international expert to testify was granted. This was a significant step and raised hopes of a successful prosecution.

On 17 February, however, the equivalent of a plea bargain deal was struck between the legal teams in terms of which Thor Chemicals admitted to limited grounds of negligence (especially not locking a door on the compressor room and thereby, by implication, allowing the “saboteurs” in to do their dirty work) and was fined R13 500, in exchange for having other charges against Thor executives, including those of culpable homicide, dropped. Most commentators agree that bringing in an expert of international standing on the issues relating to mercury toxicology would have greatly strengthened the prosecution’s case and would in all likelihood have resulted in a rebuttal of Thor’s defence claims of “acute” rather than “chronic” mercury exposure.

One of the world’s few mercury toxicology experts, Dr Laszlo Magos, has reviewed the medical records of Thor workers Ncgobo, Cele and Dlamini, as well as the records of the mercury in the urine of the other workers at Thor, independently of the court case proceedings. He concluded (Magos 1995) that:

The workforce was at risk from mercury poisoning and it is more than probable that careful screening of workers for signs and symptoms would have resulted in an appalling number of cases of intoxication. … The difference between the risk of staff and casual workers indicates that casual workers and staff workers did different jobs. It is most likely that casual workers were doing the so-called dirty jobs. … It is clear from the medical reports of the three clients that their illness was not produced by a single acute exposure, but by a build up in their body burden. Their medical history during their employment demonstrates that their body burden and consequently the concentration of mercury in the central nervous system often were in the toxic range.… The onset of acute intoxication is a few hours, and the main signs are acute pneumonitis with respiratory distress. This was not the case with the clients. This contradicts the sabotage theory.… A more plausible explanation is that there was … [a] high risk job [that] was given to casual workers.

He added that in his opinion:

… [T]he company operated the mercury plant for years without reducing exposure to acceptable non-toxic levels and the risk to casual workers in general exceeded the risk to staff workers. The use of preventative measures like ‘sending home’ and ‘dismissal’ is not a substitute for engineering control.… I suggest that the company was aware of the technical error which finally resulted in the death of the one and the incapacitation of the other workers.

The effective plea bargain deal that was struck between the prosecution and defence prevented the court from hearing international experts and resulted in an outcome that was roundly condemned by unionists and environmental activists. Shirley Miller, of the CWIU, said “the magistrate had a moral obligation to wait for the expert evidence on the mercury poisoning before he passed sentence” (Sunday Tribune 1995).

Some considered that the plea bargain entered into by the prosecutor could be attributed to “litigation fatigue” and a fear of losing the case outright. Others considered the deal very sinister and a travesty of justice. Chris Albertyn, speaking for the Environmental Justice Networking Forum, said the “fundamental mystery was why, when the state had expert evidence on hand to prove their case of culpable homicide, they agreed to drop the charges” (Weekly Mail 1995).

Thor taken to court in the United Kingdom

In addition to the criminal case, civil proceedings were brought, in England, against the English-based Thor companies and their chairperson, Des Cowley, on behalf of 20 South African workers and their families. Lawyers for the former Thor employees’ families argued that, since Thor is British-owned and since there is an apparent continuity between the problems experienced at the old plant in Margate and the one set up at Cato Ridge by Thor, the parent company owes a duty of care and is liable for damage and loss suffered by Thor employees at the South African plant.

Lawyers representing former Thor employees secured important supporting affidavits from the workers, and were confident about the ultimate outcome of their case against Thor (Leigh, Day and Company 1996). Nonetheless, lawyers anticipated that Thor would present them with as many procedural obstacles as they could in an attempt to delay, and even stop, the case’s progress.

The British parent company argued that neither it nor Des Cowley was liable for events that transpired at the Cato Ridge Plant in South Africa. This argument was tested during a “mini-trial” on 27 September 1996 and judgement went against Thor. Mr Justice Maurice Kay, of the High Court in London, called for the case to be expedited and accused Thor of delaying the court case (Daily News 1996).

In April 1997 Thor Holdings agreed to a settlement of R9 million. Thor chairman Des Cowley argued that the company had “chosen to settle than incur punitive legal expenses” (Business Day 1997).

A commission of inquiry into Thor Chemicals

After representations by the interested parties, the South African government decided to appoint a commission of inquiry into Thor Chemicals, especially to explore the problem of how to deal with the remaining mercury-containing wastes (Department of Environmental Affairs and Tourism 1994). The commission consisted of chairperson Professor D.M. Davis and three others. It heard submissions from a variety of parties, non-governmental organisations and trade unions.

The commission reported in May 1997 and found that “both the company and the previous government were to blame” for allowing Thor to import and stockpile more than 3000 tons of toxic waste. The commission report argued that “the evidence had revealed a total absence of coordination between the departments responsible as an inexplicable inefficiency and unexplained omission” (Business Day 1997a).

However the commission recommended that the existing stockpile of waste be processed either through incineration or burning. This proposal was rejected by the Environmental Justice Networking Forum which argued that further incineration posed a threat to public health.

By July 1997, no decision had yet been announced on further treatment of the stockpile.

The relationship between environmental and labour issues

We saw earlier that the joint protest by Earthlife Africa, the CWIU, Greenpeace International and local community structures held in April 1990 at Thor’s factory prompted Rod Crompton, then general secretary of the CWIU, to comment that the protest signalled the potential for a powerful “rainbow alliance” between green groups and the country’s black labour movement. The convergence of trade union concerns for worker and work place health and safety and progressive concerns about the environmental impacts of dirty industrial practices, has the potential to strengthen both constituencies and to begin plotting a new course for the environmental cause in South Africa.

Although this potential is yet to be more generally realised, there can be little doubt that, in the case of Thor Chemicals, the overall campaign has drawn strength from the alliance between Earthlife Africa, the Environmental Justice Networking Forum and the CWIU. This alliance has also facilitated supportive networking with international organisations such as Greenpeace International.

There are important obstacles that will confront those who wish to take this process of building red-green alliances forward. In general, trade unions in South Africa harbour a legitimate degree of suspicion in working with greens. Historically, environmental debates and organisations in South Africa have been dominated by the white middle class. Very few environmental organisations and activists have substantial histories of involvement in broader struggles for economic and social liberation, and almost all environmental organisations in South Africa have much to learn from the trade union movement about organisational democracy, strategic thinking and the struggle for genuine transformation. In addition, environmental considerations are often considered to be in conflict with the job security of industrial workers represented by trade unions. (For a full discussion of this issue, see Magane et al in this volume.)

The policy implications of the Thor experience

After consideration of the main features of the Thor Chemicals story, it is important to begin identifying key areas for attention and action if we are to prevent a repetition of the tragedy.

Capacity-building and training in trade unions and for workers

Trade unions, especially those located in sectors such as the chemicals industry, would service both their worker membership as well as the broader community better if particular attention was given to training and awareness-raising around relevant environmental and workplace safety issues. Current occupational safety training schemes favoured by management are not regarded as adequate by unionists.

Technology transfer

Thor’s mercury operations had already shown negative impacts at the plant in the UK by the time the process was transferred to South Africa. It appears that these problems were imported to South Africa along with the importation of the mercury operations. There is currently no environmental and health-related scrutiny of technology and industrial plant when they are transferred to South Africa. The case of Thor Chemicals suggests that such transfers should be subject to standardised national procedures to assess likely impacts on the environment and worker health and safety. Such transfers should be subject to full disclosure of information concerning the impact on the environment and worker health and safety in the country of origin.

In addition, there is growing international consensus that any industrial or related process or substance that is transferred to another country should be subject to at least those environmental and workplace safety standards as would be applicable in the country of origin. Application of this principle should ameliorate the tendency for poorer countries to feel compelled to accept transfer of dirty technology or wastes which are no longer acceptable in developed countries.

Industrial location and environmental impact assessment

Siting of proposed industrial and waste management processes must be subject to environmental impact assessments. For example, the siting of a mercury recycling plant in the catchment area of the Umgeni River—a key component of the water supply system of the area—was not itself subject to formal scrutiny.

Linked to the incorporation of environmental impact assessments in industrial location decisions, is the need to redress past problems associated with the siting of hazardous industry. Policy and practical steps must be undertaken to overcome the apartheid legacy of environmental racism that has left historically marginalised communities most at risk from environmental hazards. For example, the Thor case highlights the particular vulnerability of former “homeland” areas where industries were enticed to establish themselves by the government in terms of its industrial decentralisation policy.

Industrial planning and environmental and regulatory policy must be guided by the “precautionary principle”, that is, as long as the health and environmental impacts of an existing or proposed development, process or pollutant are unknown or uncertain, these should be considered dangerous. The onus and the cost of proving no danger to health and environment should rest with the party producing or using, or proposing to produce or use, such developments, processes and pollutants.

Transparency and participation

Government-initiated independent commissions of inquiry can be useful tools for getting to the bottom of a problem. However, in order to achieve this aim efficiently, interested and affected parties must be involved from the beginning of the process. The proposed commission of inquiry into Thor Chemicals was in danger of derailing before it had even started because of government’s reluctance to consult widely while drafting the terms of reference. Unlike the history of commissions of inquiry under the apartheid regime, commissions should function openly and transparently and should aim to reveal, and not hide, the truth.

The public’s right to know must be strengthened and must be actionable, not only against public institutions but, where appropriate, against private concerns as well. Where public access to information is qualified by other considerations, interested and affected parties to the particular issue should be given privileged access to information. Workers should have the right to be informed and there should be a duty on the part of authorities, developers and industry to alert the public, workers and other affected parties to potential environmental impacts. Workers should have the right to refuse unsafe work, and should be trained in all aspects relating to the particular process and chemicals they are to work with, so as to be able to identify when work is not safe.

Environmental enforcement

Public authorities responsible for environmental and workplace safety, enforcement and prosecutions and the institutional and legislative framework within which they function, require fundamental reorientation. In important ways, this implies a transformation of the current institutional culture that pervades these institutions at present. Even having good environmental laws on the statute books is insufficient where there is a failure of institutional will and capacity to enforce them.

The Thor case, from beginning to present, is riddled with examples of bureaucratic incompetence, a pro-industry bias, failure to act timeously and effectively, reluctance to investigate allegations and dangerously low levels of knowledge and skills on the part of inspectors. Serious deficiencies in the enforcement of environmental safeguards have been highlighted in reviewing the Thor case. Umgeni Water failed to act sufficiently when mercury contamination of watercourses was first picked up. The leadership of the Department of Water Affairs and Forestry at the time also failed to act decisively until the matter had become a public scandal. Department of Manpower directives relating to operations at Thor were undermined by incompetence and a failure to ensure compliance. The Attorney-General of Natal withheld the decision as to whether to prosecute Thor for just short of a year, and has continued to show a reluctance to investigate further alleged violations by Thor Chemicals.

Self-regulation

Increased capacity and greater political will to act effectively in the interests of workers and the environment should be accompanied by a serious review of the bias toward self-regulation by industry. It is particularly evident in a firm like Thor Chemicals that self-regulation too often means simply no effective and credible regulation—with disastrous consequences. The Thor Chemicals case has highlighted some of the failures of the current systems of environmental regulation of industry in South Africa. Government inspectors are currently too few in number and not skilled enough to fulfil the responsibilities they bear. Dealing with this lack of capacity will have a cost attached. However, if improved capacity and quality of monitoring are achieved, the savings should be significant—especially if the environmental and social costs that result from current weaknesses in the system are considered.

How, then, do we begin to develop a more effective system of regulation that will prevent similar occurrences in future? Briefly stated, the key debate is between, on the one hand, building sufficient and comprehensive governmental capacity and, on the other, self-regulation by industries themselves. (See Table 1)

It has been suggested by some that perhaps the most plausible way forward is to develop a system based on local conditions and needs which would maximise the advantages and minimise the disadvantages of both systems. Most importantly, such a system would seek maximum credibility for minimum cost with the aim of effective environmental regulation of South African industry. A system which attempts to weld together government regulatory capacity and industry-based self-regulation mechanisms would have parallels with the well-established commercial practice of financial auditing. In place of financial records, industry would be tasked with keeping standardised and comprehensive records of a regulated set of environmental indicators.

TABLE 1 Governmental regulation versus self-regulation

It is important that worker representatives should participate fully in isolating these indicators and in the collation and scrutiny of data. Such data would be submitted to a public authority for scrutiny and independent auditing. Such data, it is suggested, should also be available to the public and should be incorporated into national public databases for the development of regular national environmental audits.

There should be a degree of flexibility in terms of how such a system of environmental regulation is implemented, which is sensitive to the capacity of industrial enterprises. If, in the name of self-regulation, the regulatory system places too heavy a burden, particularly on small, medium, and micro-sized enterprises, it will collapse because enterprises will simply not be able to afford to comply. Implementation of a regulatory system should ideally be part of a wider package that aims at creating an enabling institutional and regulatory environment for cleaning up industrial processes and practices. For example, participation in the regulatory system could also provide positive incentives—such as open access to information about environmentally sound technological alternatives and assistance with developing environmental record-keeping, costing and monitoring.

There remain important difficulties with this approach, however. A regulatory system must be both effective and credible. Failure to achieve either of these objectives undermines the whole enterprise and leads to inefficiencies and costs. Huge expense will result from failures to pick up problems timeously and from contestation of data and information around particular cases. In addition, monitoring and regulatory systems must be articulated with enforcement and judicial systems. The latter are clearly functions of the public sector, which implies that certain levels of capacity have to developed and maintained in these sectors—even within a system based on self-regulation.

In addition, there are surely rational economies of scale in developing a core of skilled personnel within the public sector rather than duplicating such capacity within individual commercial enterprises. Read in conjunction with earlier comments regarding the savings that would result from a well-functioning monitoring and regulatory system, the development of governmental regulatory capacity should be considered an essential step towards a system which can deliver effective and credible environmental regulation of industry in South Africa.

The international aspects

The global economy is characterised by a concentration of power, production and consumption in the advanced economies of the North. The most characteristic form of this economic activity finds expression in transnational capital—corporations which may have their headquarters in one northern country, but whose sphere of activity is global. The gap between this rich sector and the poor is widening as the logic of global “free trade” plays itself out.

The North is also rich in terms of vocal and relatively powerful environmental lobbies. Often this has resulted in fairly tight regulation of industries and practices that can cause polluting in these countries. As a result, production with dirty technologies and the disposal of dangerous wastes has become increasingly costly in northern countries. There is a charge that these activities are being displaced to poorer countries.

In these poorer countries, environmental and worker protection is weaker, and the profit to be made in transferring these problems from rich countries can earn desperately needed foreign exchange for the economies of developing countries. Greenpeace researchers have documented the systematic transfer of dirty technology and hazardous wastes from North to South. As Chris Albertyn (1992) noted in an address to the national environmental health conference in 1992:

The implementation of stringent waste disposal and pollution control regulations in Europe and the USA during the 1980s resulted in more than 1000 schemes to ship toxins to countries with less protection for their people and the environment upon which they depend. In many cases the choice for economically strapped governments became poison or poverty.

The implication of this perspective is that, in the long run, preventing occurrences like the Thor saga is inextricably linked to the struggle to restructure the global economy in the interests of justice.

International conventions which regulate the waste trade

It has been recognised that the trade and transfer of wastes—and especially dangerous wastes—around the world must be subject to some form of control. Recognising the pattern of transfer discussed above, many third world countries not only condemned industrialised nations but sought to ban all such dangerous waste imports. The Organisation of African Unity was at the forefront, calling such dumping “a crime against Africa and all its people” (Albertyn 1992). President Daniel Arap Moi of Kenya commented that:

Africa has rejected all forms of external domination. We do not want external domination to come in through the back door in the form of garbage imperialism.

The ground swell of third world anger led to a gathering in Switzerland in 1989. On the agenda of third world countries was an outright ban of all exports of toxic wastes from industrialised countries. However, given the strength of USA and European interests, the Basel Convention, as it became known, ended up becoming a treaty that legalised a controlled trade in toxic wastes. South Africa is a signatory to the Basel Convention. Not satisfied with the Basel Convention, 68 countries from Africa, the Caribbean and the Pacific, collectively known as the ACP countries, pressured officials from the European Community into banning all radioactive and hazardous exports from the EU to ACP countries.

At the same time many individual countries were quickly closing the sluice gates. Ninety countries outside Western Europe and the USA have now banned waste imports. In January 1991, the Organisation of African Unity adopted the Bamako Convention which prohibits the import into Africa of any hazardous wastes. Glazewski (1993) has noted that:

The Bamako Convention was instigated by the African bloc’s dissatisfaction with the Basel Convention’s provisions. It appeared that Basel encouraged rather than limited the transboundary movement of hazardous waste into Africa.… Bamako is Africa’s response to Basel and clearly juxtaposed to it on a question of principle. … The fundamental difference between the two conventions is that the emphasis of Basel is the regulation of trade in hazardous waste, while Bamako bans its importation into Africa … The key objective of Bamako is to prevent the African continent becoming a repository of first world waste.

Based on the Thor experience, the logic of this key objective is compelling, and South Africa should accede to the Bamako Convention.

International solidarity

The struggles around the Thor case in South Africa have highlighted the possibilities and challenges of international networking and joint campaigning. There are numerous ways in which this can be taken forward. International union federations can provide points of contact for linking workers at production and disposal sites in joint actions. International environmental organisations have been invaluable in providing information concerning production processes overseas, as well as information regarding transportation of hazardous wastes. And international alliances of legal experts and practitioners can be employed in developing legal strategies that span across continents.

Conclusion

Thor Chemicals exposed the weaknesses in the regulation of industrial hazards, and in so doing tragically demonstrated that workers are at the front line of environmental hazards. South Africa’s occupational health and environmental protection systems failed disastrously and must be reformed and improved to ensure that they do not fail again. Chief among these lessons is the need to upgrade and integrate government inspection services; the need to improve state prosecution of environmental cases and the dangers of unchecked self-regulation.

References

Albertyn, C., “Thor Chemicals: lessons for a new South Africa”, address to the national environmental Health Conference, 1992.

Albertyn, C., “Complaint re Thor Chemicals”, letter from Chris Albertyn, chairperson, Environmental Justice Networking Forum, to Attorney-General T. McNally, 16 November 1993.

Colvin, M., “Mercury poisoning at Thor Chemicals”, Industrial Health Unit research paper, University of Natal, 1992.

Davies, J.C.A., “Minimising risk to health in the chemical industry”, report by the National Centre for Occupational Health, 1992.

Department of Environmental Affairs and Tourism, media release by Dr Dawie de Villiers, Minister of Environmental Affairs and Tourism, issued by the Ministry of Environmental Affairs and Tourism, Pretoria, 7 December 1994.

Department of Environmental Affairs and Tourism, media release by Dr Dawie de Villiers, Minister of Environmental Affairs and Tourism, issued by the Ministry of Environmental Affairs and Tourism, Cape Town, 24 February 1995.

Department of National Health and Population Development, “Importation of ‘CINNCARB’”, letter from the director-general: Department of National Health and Population Development, to Mr van der Vyver, Thor Chemicals, 12 September 1992.

Department of Environmental Affairs and Tourism, letter from the regional director: Department of Water Affairs and Forestry, Natal region, to Chris Albertyn, 14 February 1994.

Earthlif e Africa, media release by Earthlife Africa, Pietermaritzburg branch, concerning Thor Chemicals and the International Water Tribunal, 1992.

Glazewski, J., unpublished paper, “Regulating transboundary movement of hazardous waste: international developments and implications for South Africa”, 1993.

International Water Tribunal, findings of the tribunal, in Earthlife Africa (Pietermaritzburg) v. Thor Chemicals SA Pty Ltd, 21 February 1992.

Koch, E., “Rainbow alliances: community struggles around ecological problems”, in Cock J., and Koch E., (eds), Going Green: people, politics, and the environment in South Africa, Oxford University Press, Cape Town, 1991.

Kockott, E, unpublished notes, researcher for the Environmental Justice Networking Forum, 1994.

Kotze, G., letter from Gert Kotze, Minister of Environmental Affairs, to Steve van der Vyver, Thor Chemicals, 17 October, 1990.

Leigh, Day and Company, legal representatives, correspondence with Chris Albertyn, Environmental Justice Networking Forum, 5 August 1996.

Magos, L., unpublished report provided to the author, 9 January 1995.

McNally, T., letter from the Attorney-General of Natal to Chris Albertyn, 7 April 1995.

Lombard, R., facsimile titled “Thor Chemicals” from Lombard and Associate, 29 May 1990.

Thor Chemicals, letter from Thor Chemicals, Inc., USA, to the Environmental Protection Agency, 11 February 1986.

UK health and safety executive, letter from Health Safety Executive, UK, to the Department of Manpower, South Africa, 12 May 1994.

Newspaper articles

Business Day, 1997, “ Thor pays R9m to ‘poisoned’ workers”, 9 April 1997.

Business Day, 1997b, “ Np blamed for Thor’s chemical stockpile”, 14 May 1997.

Daily News, ”Decision soon on chemical firm action”, 27 August 1993.

Daily News, 8 November 1996.

Natal Mercury, ”Former Thor man dead: possibility of poisoning investigated”, 11 September 1993.

Natal Mercury, ”New Thor probe ordered”, 9 December 1994.

Natal Witness (1992a), “Thor workers face major poisoning risk”, 3 April 1992.

Natal Witness (1992b), “Thor Chemicals report done”, 21 October 1992.

Sunday Tribune, ”Shut down Thor!”, 19 February 1995.

The Times - Picayune, 1994:17th February 1994, New Orleans.

Weekly Mail, ”Thor judgement condemned”, 24 February 1995.

Document(s) 14 of 15