the toxic truth - Greenpeace

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the toxic truth Discovering the mistake yet still failing to act The failure of the Dutch authorities did not end with the release of the Probo Koala on 5 July 2006. Following the departure of the ship, police officers continued to investigate the issue. The police contacted Greek-based Falcon Navigation, the company which managed day-to-day operations of the the Probo Koala for Trafigura, who told the Dutch investigating officers that it was not tank washings that had taken place, but rather washing of coker naphtha on board using caustic soda. 531 toP riGht: Pieter van Geel, state secretary of Housing, Spatial Planning and Environment. © ANP/eVert-jAN DANieLS bottom riGht: Hans Gerson, director of the port of Amsterdam. © ANP/DijKStrA bV The Dutch police then contacted a Londonbased Trafigura executive, Naeem Ahmed, on 15 August. During the call, a Dutch police officer obtained confirmation that the waste on board the Probo Koala had been generated by a caustic washing process and was therefore not the “tank washings” that Trafigura had previously declared in Amsterdam. 532 In addition, the Dutch police officer told Naeem Ahmed that Trafigura needed to ensure that the waste was not discharged as MARPOL slops but as chemical slops. At this point the Probo Koala was in Nigeria, making another attempt to dispose of the waste, and the tragedy of Abidjan was yet to occur. The Dutch police now had further reason to be seriously concerned: they knew how the waste had been produced; they clearly knew that it was not MARPOL waste and was hazardous; and they knew the waste was now in Africa. Moreover, more than one month after the Probo Koala had tried to discharge the material at Amsterdam, there was still no confirmed destination for the waste, and they knew, or should have known, that they were dealing with the transboundary movement of hazardous waste, which is subject to international law. This additional knowledge should have triggered the involvement of the relevant authorities and, in line with the Basel Convention and the ICESCR, action should have been taken to establish where the waste was to be delivered and to contact the Nigerian authorities. The Dutch police should also have told Trafigura that disposal in an African country was unlawful and have demanded that the waste be returned to the Netherlands for proper processing. However, none of this was done. The matter, which should have been dealt with at state level, instead remained at the level of contact between the police and the company. The police officer, speaking about his actions said: 117 Chapter 9
118 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 9 “ I never realised that Trafigura would leave the waste in Africa. I thought that if I would continue making phone calls to Ahmed that the company would not dump the waste at sea but keep the waste onboard instead until the ship would return to Europe. The reason why I did not raise the issue higher up is because my experience is that it would not be acted 533 upon. ” While the individual police officer appears to have acted out of a genuine desire to prevent the waste from being dumped, the view that the issue could not be reported to more senior authorities is cause for concern. Under the Basel Convention and European Waste Shipment Regulation, the Dutch state had an obligation to ensure either that the waste was re-imported or, if that was impossible, to ensure that it was disposed of in an environmentally sound manner. The European Waste Shipment Regulation states: “ If such illegal traffic is the responsibility of the notifier of the waste, the competent authority of dispatch shall ensure that the waste in question is: (a) taken back by the notifier or, if necessary, by the competent authority itself, into the State of dispatch, or if impracticable; (b) otherwise disposed of or recovered in an environmentally sound manner, within 30 days from the time when the competent authority was informed of the illegal traffic or within such other period of time as may be agreed by the 534 competent authorities concerned. ” Why did the regulators fail so badly? The question of why regulators in the Netherlands failed on so many fronts was considered in the report of the official enquiry established by the municipality of Amsterdam. Two key issues emerged, both of which require some further scrutiny. Regulators unclear about the law Investigations by the Municipality of Amsterdam (published in the Hulshof Committee report) and by 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, have highlighted a lack of clarity amongst the different regulatory bodies in the Netherlands as to which law or regulations applied. 535 In particular, there appeared to be a lack of understanding of the requirements of the Dutch Environmental Management Act and how it applied to the waste that had been offloaded on to the APS barge. Initially, the Municipal Department of Environment and Buildings notified APS that pumping the waste back would contravene the Environmental Management Act. 536 However, following consultation with APS and its lawyers, the Department changed its position. 537 Port State Control, the institution responsible for inspecting foreign ships and whose mandate is based on provisions of the MARPOL Convention, provided advice to the Amsterdam Port Authority that was incorrect. Port State Control told the Port Director that “no legal basis existed under the MARPOL regulations to prevent the ship from reloading the slops and delivering them to another port” given “the shipowner’s freedom of choice to do so”. As detailed above, under the EU Directive that gives effect to MARPOL, more than one legal basis existed to prevent the ship leaving with the waste on board. While both the Dutch Environmental Management Act and the MARPOL Convention were referrenced by relevant authorities – albeit
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