the toxic truth - Greenpeace

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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 111 Chapter 9
112 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 9 Aerial view of the Port of Amsterdam © ANP/Your cAPtAiN LuchtFotoGrAFie to have questioned the legal framework that should apply to the waste overall. The UN Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, who also examined this case, concluded that “inspection of the vessel and sample analysis to determine the origin and exact composition of the waste would have been necessary to identify the applicable legal framework.” 510 However, the subsequent official enquiry revealed that, despite the evident problems with the waste, the authorities did not question Trafigura’s categorization of it as MARPOL waste and Trafigura’s right to ship it onward to another country without applying the Basel Convention/European Waste Shipment Regulation controls. The waste was clearly under the jurisdiction of the Netherlands at that point (at sea or on board the Probo Koala). Consequently, any onward shipment to another country would be defined as a transboundary movement and thus subject to the Basel regime and the European Waste Shipment Regulation, which gives effect to the Basel Convention. 511 While the authorities may have initially thought the material was normal MARPOL waste, once they were in possession of further information about the nature of the waste, it should have become clear that the material fell under the
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the toxic truth - Greenpeace

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