the toxic truth - Greenpeace

the toxic truth
The legal means to act
In addition to having the information
necessary to act, the Dutch had the legal
capacity to act. Several laws applicable in
the Netherlands gave the authorities the
right to inspect the ship, the authority to
prevent it from leaving Amsterdam, and the
authority to require disposal of the waste
in the Netherlands. Moreover, not only did
the Netherlands have the legal right to act
to prevent the waste leaving Amsterdam,
under European and international law, it was
required to do so.
Failure to apply the Dutch
Environmental Management Act
A central event in Amsterdam was the
discharge of a portion of the waste on to
the APS barge. The significance of the fact
that some of the waste was no longer on a
ship, but offloaded and in the Netherlands,
seems to have been largely overlooked at the
time. The law applicable to the waste on the
barge now included the Dutch Environmental
Management Act, which prohibits the
transfer of industrial or hazardous waste
to anyone who is not authorized to receive
hazardous waste. 506 While there are a number
of exceptions within the Environmental
Management Act, none was applicable in this
case. 507 An official enquiry later concluded:
“there is no evading the conclusion
that Article 10.37 of the Environmental
Management Act was applicable.” 508
At the time, regulators focused on whether
APS had legally “accepted” the waste on the
barge, and this appears to have obscured
the significance of the fact that the waste
was no longer on board the Probo Koala. 509
Regardless of whether APS had legally
“accepted” the waste, material with a reported
COD of approximately 500,000mg/l was
to be transferred to another party – Probo
Koala – which was not only not authorized
to receive hazardous waste under the Dutch
Environmental Management Act, but had also
made it clear that it would then be taking the
waste out of Dutch jurisdiction, ie, exporting it,
a process governed by EU and international law.
Failure to apply Basel regime
and the European Waste
Shipment Regulation
The waste carried by the Probo Koala was
hazardous waste as defined by international
law (the Basel Convention), and therefore
it should only have been moved from one
country’s jurisdiction to another in accordance
with the terms of the Basel Convention, which
regulates the transboundary movement of
hazardous wastes. Although Trafigura told the
Dutch authorities that the waste it had created
was MARPOL waste, this was incorrect as
explained previously. MARPOL waste is waste
generated in the normal operations of a ship.
Caustic washing of coker naphtha cannot be
classified as the normal operation of a ship
under MARPOL.
The smell of the waste, the reported health
impacts, the fact that DMB initially considered
it as hazardous or industrial waste under the
Environmental Management Act, APS’s inability
to process the waste and the information that
it had a COD of approximately 500,000mg/l
were all clear signals that the waste on board
the Probo Koala was not the result of the
“normal operations of a ship”. Although the
Environmental Management Act, Section
10.37, was initially cited in relation to the
waste offloaded from the Probo Koala (but
then disregarded), the authorities do not seem
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Chapter 9